CABLE  RAILWAYS  vs.  HORSE  RAILROADS 


FOR  INTRAMURAL  TRANSIT 


IN  THE 


CITY  OF  NEW  YORK. 


CONCLUDING  ARGUMENT 


BY 


CHARLES  P.  SHAW,  Esq., 

In  Support  of  Cable  Railways,  before  the  Commissioners 
of  the  Supreme  Court— General  Term. 


Hon.  GUY  R.  PELTON,  \ 

Hon.  W.  C.  TRAPHAGEN,  V  Commissioners. 

Hon.  LEROY  B.  CRANE,  ) 

Mr.  CHARLES  P.  SHAW, 

For  the  New  York  Cable  Railway  Company. 

Mbjwbs.  FREDERIC  R.  COUDERT,  THOMAS  P.  WICKES, 

WILLIAM  C.  TRULL,  CHARLES  PUTZEL, 

Hon.  ALFRED  WAGSTAFF,  D WIGHT  COLLIER, 

Hon.  LUKE  M.  COZANS,  F.  W.  ADEE, 

CLIFFORD  A.  HAND,  C.  W.  SEYMOUR, 

JOHN  M.  SCRIBNER,  VALENTINE  MARSH, 

JOSEPH  ECCLESINE,  EDWARD  LAUTERBACH, 

Hon.  ABRAM  WAKEMAN,  WHEELER  H.  PECKHAM, 
Hon.  JAMES  M.  VARNUM, 

For  Fifteen  Horse  Railroads  and  for  other  oljectors. 


New  York  : 

MARTIN  B.  BROWN,  PRINTER  AND  STATIONER, 
Nos.  49  and  51  Park  Place. 

1  885. 


lEx  ICtbrts 


SEYMOUR  DURST 


Avery  Architectural  and  Fine  Arts  Library 
Gift  of  Seymour  B.  Durst  Old  York  Library 


May  it  please  this  Honorable  Commission  : 

The  magnitude  of  the  inquiry  that  has  so  long  been 
before  you,  its  far  reaching  effect  upon  the  mental,  the  moral  and 
the  material  interests  of  the  people  of  this  great  metropolis,  for 
whom  you  are  really  practically  legislating  on  a  matter  of  the 
gravest  concern  to  them,  deserves  at  my  hands  a  swelling  pro- 
logue as  to  an  imperial  theme ;  but  I  shall  not  indulge  in  any 
prologue  except  by  quotation  from  Lord  Macaulay's  History  of 
England,  where  he  says  "  of  all  inventions,  the  alphabet  and  the 
printing  press  alone  excepted,  those  inventions  which  abridge 
distance  have  done  the  most  for  the  civilization  of  our  species. 
Every  improvement  of  the  means  of  locomotion  benefits  mankind 
morally  and  intellectually  as  ivell  om  materially. v 

That  proposition  is  not  only  true  respecting  means  of  com- 
munication between  city  and  city,  state  and  state,  and  across  con- 
tinents from  sea  to  sea,  but  it  is  also  more  intensely  true  as  to 
furnishing  means  of  communication  within  the  metropolis  where 
the  ganglia  of  human  life  and  thought  and  enterprise  are 
clustered. 

Aud  thus  it  is  that  Mr.  Holmes,  the  President  of  the  Chicago 
Cable  Road,  in  his  affidavit  says,  "  since  this  improvement  in 
means  of  locomotion  has  been  adopted  in  Chicago,  we  find  that 
our  car  conductors  have  become  superior  men,  mentally  and 
morally." 

Compare  a  car  conductor  on  the  elevated  railroads  of  this  city 
with  a  car  conductor  on  a  horse  railroad.  Behold  how  one  is  clothed 
as  it  were,  with  a  sort  of  official  dignity  and  importance.  Look 
at  the  uninviting  appearance  of  the  other.  That  illustrates  the 
situation  as  to  the  difference  between  employees  who  conduct  the 
traffic  of  our  city.  But  what  is  the  effect  upon  the  health  and  man- 
ners and  morals  of  the  passengers  ?  All  of  you  have  visited  Lon- 
don where  the  cab  system  prevails.  Would  you  there  take  a  shabbv 


2 

hansom  ?  ]STo  ;  You  demand  the  brightest  and  cleanest.  If,  as 
so  frequently  is  the  case  here,  you  get,  by  accident  or  necessity, 
into  a  nasty  and  broken  down  cab  you  don't  put  your  head  out  of 
the  door,  you  don't  want  to  see  any  passers-by,  you  hide  yourself. 
But  give  you  a  stylish  vehicle  and  you  appreciate  your  own 
dignity  and  you  assert  your  sense  of  your  own  personal  worthi- 
ness by  a  complacent,  self-possessed  and  exposed  glance  at  every 
passer-by. 

This  may  seem  to  be  a  trivial  matter,  but  if  our  whole  city, 
including  its  rich  and  poor,  could  be  lifted  up  to  an  appreciation 
of  a  system  of  intramural  transit,  which  would  be  the  common 
right  of  all,  and  which  would  furnish  means  of  transit,  at  once 
elegant,  commodious,  adequate,  cheap,  noiseless,  cleanly  and 
every  way  pleasant,  and  at  the  same  time  so  comprehensive  and 
adaptative  as  to  carry  for  a  single  fare  of  five  cents  up  town  and 
down  town,  on  both  sides  of  the  city,  and  across  the  city  at  con- 
venient intervals,  so  as  to  connect  with  all  our  established  ferries 
upon  the  two  glorious  rivers  that  cincture  our  metropolitan  island, 
in  commodious  and  elegant  cars,  propelled  by  the  noiseless  and 
perfectly  subjected  power  of  steam,  exerting  its  energy  from  an 
unseen  and  distant  station,  under  this  mysterious  cable  railway  grip 
which,  like  the  human  hand,  plays,  if  I  may  use  the  expression, 
the  symphony  of  locomotion — and  all  this  without  the  noisome 
products  of  combustion  and  the  noise  incident  to  the  lumbering, 
vibratory  energy  of  the  locomotive,  and  without  the  faecident 
voidings  incident  to  the  use  of  animal  power,  the  perils  of  which 
to  the  health  of  the  city  have  been  so  powerfully  and  graphically 
described  before  you  by  Professor  Doremus  and  other  sanitary 
authorities. — I  say,  if  all  this  be  so,  what  power  for  weal  or 
woe  to  this  city  is  held  in  your  hands,  gentlemen  of  the  Com- 
mission. 

I  cannot  allow  you  to  think  that  I  exaggerate  this  matter. 
Several  years  ago  I  heard  the  late  eloquent  Dr.  Cbapin  deliver  his 
lecture  on  "  The  Origin  of  Social  Forces."  I  remember,  in  a 
general  way,  that  he  ascribed  their  origin,  so  far  as  concerned 
classic  Rome,  to  a  sunbeam  that  melted  frozen  water  on  the  pin- 
nacles of  the  Alps.  It  was  a  small  effort  of  the  sunbeams,  he 
argued,  upon  each  Alpine  crystal  of  frost-woven  water,  but 


3 


crystal  after  crystal  of  the  icy  diamonds  melted  and  united  their 
products  into  the  cataract  that  leaped  from  their  mountain-home, 
now  in  cascade,  now  in  torrent,  and  finally  reached  the  glowing 
Lombard  champaign,  on  whose  smiling  bosom  flow  the  Po  and 
the  Tiber.  Thus,  from  a  sunbeam  kissing  his  frosty  mistress  of  the 
ice,  came  the  majestic  river  whose  yellow  tide  made  the  majesty  of 
Rome  and  lent  buoyancy  to  the  boat  that  bore  Caesar  and  his 
sceptre  of  universal  empire. 

Brought  by  this  illustration  of  a  sunbeam's  power  into  the 
presence  of  imperial  Rome,  its  tribunes,  its  consuls,  its  conscript 
fathers,  I  present  to  you  this  proud  question,  and  you  must 
answer  it,  not  to  coming  generations,  but  to  the  living,  throb- 
bing throng  of  to-day.  It  was  the  great  Roman  question. 
That  question  is  this  :  What  have  you  done  to  adorn  the 
capital  of  your  country  ?  If  this  cable  system  of  railways,  with 
its  transfer  tickets,  will  cheapen,  enhance,  perfect  a  system  of 
intramural  transit  for  our  city,  you  cannot  deny  if  you  refuse  it, 
that  you  found  it  within  your  power  to  promote  its  prevalence" 
If  the  system  prevails  by  your  approval — and  it  can  prevail 
only  by  your  approval — you,  when  asked,  as  the  Roman 
official  was  accustomed  to  be  asked,  "What  have  you  done 
to  adorn  the  capital  of  your  country?"  may  answer,  "We  have 
aided  to  give  a  system  of  intramural  transit,  vast  and  compre- 
hensive, for  the  benefit  of  the  rich  and  poor  of  the  metropolis  and 
the  stranger  within  its  gates,  and  which  we  verily  believe,  with 
Lord  Macaulay,  will  '  benefit  mankind  morally  and  intellectually, 
as  well  as  materially.'  " 

I  just  spoke  of  this  cable  railway  grip.  Without  it,  all  that  I 
for  five  long  months  have  contended  for  before  you  would  be  a 
vain  folly.  With  it,  we  are  made  to  conceive  how  the  grasp  of 
the  iron  but  flexible  fingers  of  a  metallic  hand  can  work  the 
chords  of  the  harp  of  human  progress  in  this  matter  of  intramural 
transit,  as  perfectly  as  Orpheus  could  have  done  it. 

The  advent  of  this  grip,  as  a  practical  realization,  seems  to 
have  been  a  providential  marvel  to  our  city,  appearing  at  the 
time  and  under  the  circumstances  that  it  did.  Its  efficiency  and 
perfection  had  received  the  test  of  ten  years'  practical  operation 
in  the  City  of  San  Francisco ;  five  years  in  Melbourne  Australia, 


4 


and  three  years  in  Chicago ;  cities  illustrating  all  the  topograph- 
ical peculiarities  of  our  metropolis,  and  also  all  variations  in  the 
width,  business  and  activity  of  its  thoroughfares.  The  Constitu- 
tional Amendment  of  1875,  forbade  the  further  construction  of 
horse  surface  railroads,  until  the  Legislature  should  declare  by 
some  general  act  that  additional  roads  of  that  description  might 
be  built.  Up  to  May  6,  1884,  no  such  act  *  had  been  passed, 
although  the  horse-railroad  franchise  hunters  had  besieged  the 
Legislature  annually  and  frantically  for  eight  previous  years  with 
their  venal  appliances  and  their  greedy  love  of  plunder.  But 
there  was  on  the  statute-book,  and  has  been  on  the  statute-book 
in  unimpaired  vigor  ever  since  June  18,  1875,  an  act  known  as 
the  Rapid  Transit  Act,  under  which  our  elevated  railroads  have 
been  built,  and  under  which  surface  roads  of  the  cable  descrip- 
tion or  any  other  description,  except  roads  to  be  operated  by 
animal  power,  could  and  can  be  built. 

During  these  eight  years  of  struggle  to  plant  more  horse  rail- 
roads in  this  city,  the  need  of  additional  and  improved  transit 
had  grown  and  grown  until  it  had  exceeded  the  enormous  pro- 
portions described  by  Mr.  Bergh,  General  Yiele,  Mr.  Shinn,  Mr. 
Church,  Mr.  Fuller  and  others,  whose  testimony  is  before  you. 

During  these  eight  years  the  city's  need  for  additional  transit 
had  astonishingly  multiplied.  Our  sister  city  of  Brooklyn  had 
almost  doubled  her  population,  and  the  other  cities  and  villages 
within  the  radius  of  our  municipal  activity  grew  like  Jonah's 
gourd.  Of  course,  under  such  a  condition  of  things  as  this,  no  one 
knew  when  the  oft  besieged  and  oft  resisting  Legislature  would 
offer  further  facilities.  It  was  at  this  time  when  the  necessity,  as  all 
admit,  for  increased  transit  facilities  existed,  and  when  there  was 
no  power  to  obtain  them,  except  under  the  Rapid  Transit  Act  of 
1875,  that  this  wonderful  cable  railway  grip,  so  successful  in 
sister  cities,  was  presented  to  the  attention  of  the  constituted 
authorities,  charged  with  the  duty  of  dealing  with  this  question. 

The  symphony  of  the  Tenth  Muse — the  Muse  of  Invention — 
brought  that  cable  railway  grip  to  us. 

A  word  here  as  to  the  practical  operation  of  the  system.  It 
is  general  Viele's  system.  There  is  to  be  no  disguise  about  that,, 
I  hold  his  testimony  in  my  hand.    From  it  I  read.    He  says  : 


5 


"  So  far  as  this  system  is  concerned,  I  can  give  a  detailed 
statement  of  it ;  I  insert  below  in  this  affidavit  an  extract  from  a 
newspaper,  giving  a  description  of  the  condition  of  things  in  the 
City  of  Chicago,  where  the  cable  system  is  a  fact,  and  not  an 
experiment,  but  a  fact  as  fixed  as  the  existence  of  the  horse  or 
male  motive  power  of  the  horse-railway  system ;  the  article 
describes  the  condition  in  the  City  of  Chicago  at  this  moment, 
and  I  know  it  is  correct,  because  I  have  observed  the  fact  stated 
in  it. 

The  article  is  as  follows  : 

CHICAGO  CITY  RAILROAD  COMPANY. 

{From  Chicago  Inter-Ocean,  January  1, 1885.) 

Of  all  the  new  methods  for  shortening  time  and  space  in  great  cities  the 
most  perfect  hitherto  is  that  of  the  cable-car  system.  If  one  horse  can  supply 
the  place  of  a  dozen,  and  still  more,  if  a  stationary  engine  two  miles  away  can 
eliminate  horses  almost  entirely,  and  furnish  more  and  more  rapid  accommo- 
dation, the  gain  directly  in  comfort  and  indirectly  in  the  spread  of  the  popula 
tion  is  incalculable.  That  the  cable  system  presents  the  highest  degree  of 
excellence  yet  attained  for  city  travel  needs  no  demonstration.  A  short  experi- 
ence was  Decessary  to  habituate  the  public  to  the  cable-cars.  But,  now  that 
we  are  all  familiar  with  them,  every  one  knows  precisely  how  to  deal  with 
them.  The  Cable  Company  have  clone  a  work  that  thinking  people  will  not 
fail  to  recognize.  Abused  and  vilified  as  all  good  things  are,  denounced  as 
every  step  of  progress  has  been,  every  man,  woman  and  child  in  Chicago  now 
points  to  the  cable-cars  as  one  of  the  most  valuable  and  progressive  enterprises 
of  Chicago.  The  citizen  enjoys  a  quiet  chuckle  as  he  does  homage  to  his  own 
superior  knowledge  at  the  expense  of  the  mystified  looks  and  questions  of  his 
country  cousin.  We  all  feel  ourselves  on  a  higher  plane  of  intelligence  from 
our  being  pare  of  the  city  with  its  cable  railroad,  as  well  as  the  other  institu- 
tions that  constiute  the  pride  of  Chicago.  No  wonder  this  system  has  been  a 
great  success.  Over  100  grip-cars  and  more  than  300  box-cars  constantly  pass- 
ing, always  occupied,  and  in  the  morning  and  evenings  crowded,  an  army  of 
workmen,  and  a  finance  system  away  up  in  the  millions,  present  the  idea  of 
great  public  usefulness.  There  is  not  one  man  of  us  who  would  not  be  proud 
to  own  a  slice,  notwithstanding  all  the  detraction  of  the  'early  days.'  It  is 
well  known  not  only  that  the  cable  road  has  immensely  increased  the  value  of 
all  real  property  along  the  route,  but  everywhere  within  convenient  access  of 
that  route.  The  extension  of  the  same  system  through  those  portions  of  our 
chief  thoroughfares,  not  yet  occupied,  would  be  hailed  with  delight  by  every 
man  owning  a  fifty-foot  lot. 

No  man  can  contend  that  the  Cable  Company  has  not  provided  locomotion 
good,  cheap  and  effective.  They  deserve  their  success.  The  rate  of  speed  is 
far  greater  than  that  attained  from  a  motive  power  of  horses,  while  the  condi- 


6 


tion  of  the  track  is  infinitely  superior.  The  cable-car  system  constitutes  the 
finest  method  of  locomotion  ever  introduced  here  or  elsewhere.  A  description 
of  the  system  is  hardly  needed.  The  cable  is  of  iron  wire  and  runs  on  pulleys 
through  a  long  tunnel  under  the  centre  of  the  street.  The  grip  car  is  provided 
with  a  long,  strong,  combined  lever  that  grips  the  cable  by  means  of  a  jaw 
under  the  cable  and  sustaining  it  and  another  jaw  that  is  drawn  down  and 
presses  the  cable  between  itself  and  the  lower  ones.  The  grip,  being  thus 
attached  to  the  moving  cable,  is  necessarily  drawn  along  with  its  train  of  cars. 
The  rate  of  speed  is  about  eight  miles  an  hour.  The  cars  usually  stop  at  each 
cross-street.  The  driver  withdraws  the  pressure  of  the  lever  on  the  cable  and 
applies,  by  means  of  a  lever,  a  brake  to  every  wheel  in  the  train,  stopping  it 
quickly.  The  shops  and  office  are  situated  on  Twentieth  street,  where  every 
inquiring  person  is  welcome  to  observe  the  system  as  there  on  view." 

General  Yiele  continued : 

"  Chicago  claims  to  be  the  centre  of  civilization,  and  if  she 
continues  to  progress  in  advance  of  Kew  York  as  she  has  in  this 
matter  of  city  transit,  her  boast  will  very  soon  be  verified.  Every 
word  of  that  paragraph  is  true  to  my  knowledge,  and  it  is  the 
system  that  is  prevailing  in  Chicago  and  San  Francisco.  There 
is  no  reason  why  steam  unobserved,  unseen,  and  noiseless,  should 
not  be  applied  to  move  a  car  as  well  as  a  horse  or  a  mule." 

Thus  saveth  General  Yiele.  Observe  this  as  the  foundation  of 
my  argument  on  the  physical  and  economical  questions  !  Those 
eminent  engineers  who  have  been  before  you — Shinn,  Boiler,  Halli- 
die,  North  and  Endres — confirm  General  Yiele.  And  could  I  speak 
of  any  opposing  testimony  except  as  the  shadow  of  a  shade,  com- 
pared with  such  names  as  these  ?  The  world  is  full  of  engineers. 
I  could  lay  my  hand  upon  a  score  of  them  who  would  come  to 
give  expert  testimony.  My  resources  for  the  employment  of 
expert  talent  are  notoriously  not  small.  The  resources  of  the 
city  to  get  such  testimony  are  adequate  to  the  purchase  of  expert 
stultification.  But  such  a  patent  fact  as  I  am  arguing  here 
couldn't  purchase  any  man  who  had  a  remaining  sentiment  of 
respect  for  himself. 

Compare  any  expert  engineers  on  the  question  of  the  mechani- 
cal feasiblility  of  our  cable  system  with  any  other  unshown  head 
that  is  against  us.  Affidavits  sneak  in  upon  us.  I  can't  cross- 
examine  the  affiant.  He  don't  come  here.  Why  has  not  the 
Corporation  Counsel  brought  his  experts  here  ?  It  is  evident 
I  am  meeting  only  his  experts  here.    Why,  if  I  had  his  experts 


7 


here,  what  do  you  suppose  would  happen  %  I  would  tear  them 
limb  from  limb.  How  do  you  suppose  Mackay  would  fare 
in  my  hand  in  the  frame  of  mind  I  am  ?  Where  would  be 
Crowley  ?  if  I  had  that  boarding-house  bilker  under  my  thumb  ! 
What  would  I  do  with  Birdsall,  the  man  who  lied,  and  knows  he 
lied  ?  and  probably  lied  because  the  Corporation  Counsel  told 
him  he  must  he  ? 

Compare  such  experts — and  no  other  appear  here  against 
us — with  my  array  of  experts  ! 

More  than  five  months  ago,  on  the  opening  of  your  investiga- 
tion, I  proposed  to  prove  to  you  the  utility,  the  desirability  and  the 
necessity  of  the  Cable  scheme  of  intramural  transit  which  has 
been  already  commended  to  you  by  the  report  of  Commissioners 
appointed  by  the  then  Mayor  of  this  city. 

The  notice  was  conspicuous.  It  advertised  my  purpose  to  all 
possible  objectors.  No  child  in  the  land  would  have  misunder- 
stood that  I  meant  to  challenge  expert  testimony  on  the  subject 
of  cable  roads  as  a  feasable  means  of  intramural  transit  for  this  city. 
It  is  for  you  to  say  whether  or  not  I  have  vanquished  all  oppo- 
nents who  have  dared  to  respond  to  my  challenge. 

The  Mayor  appointed  his  Commission  on  the  30th  day  of 
November,  1883,  on  the  petition  of  one  hundred  and  sixteen 
proper ty-owners  of  the  city.  I  cannot  now  detain  you  to  say, 
nor  is  it  needful,  because  you  know,  as  well  as  I  do,  how  the 
record  reads,  who  those  property-owners  were,  but  I  may  say 
generally  that  they  represented  the  mercantile  and  the  real  estate 
interests  of  the  city,  as  appears  from  the  record.  It  is  said  that 
these  petitioners,  headed  by  Horace  B.  Clanin,  undoubtedly  the 
largest  and  most  conspicuous  merchant  of  the  Western  Hemis- 
phere, represented  upwards  of  $300,000,000  of  the  real  and  per- 
sonal estates  of  the  city.  Gentlemen  of  the  Commission,  those 
petitioners  demanded  from  the  then  Mayor  of  the  City,  Mayor 
Edson,  a  Commission  under  the  Rapid  Transit  Act  of  1875,  to 
do  and  determine  such  matters  and  things  as  that  act  provided 
they  might  do  and  perform  in  the  matter  of  cable  roads,  and  in 
that  demand  they  stated  as  follows  : 


8 


To  t/ie  Hon.  Franklin  Edson, 

Mayor  of  the  City  of  New  York  : 

The  undersigned  applicants,  residents,  householders  and  taxpayers  of  the 
City,  County  and  State  of  New  York,  would  respectfully  show  : 

First.  That  the  act,  chapter  606  of  the  Laws  of  the  State  of  New  York, 
passed  June  18, 1875,  commonly  known  as  the  Rapid  Transit  Act,  and  entitled 
"An  act  to  further  provide  for  the  construction  and  operation  of  a  steam  rail- 
way, or  railways  in  counties  of  the  State,"  remains,  as  your  applicants  are 
advised  and  believe,  substantially  in  full  force  and  effect,  as  originally  applica- 
ble to  the  City  of  New  York,  and  is  available,  as  its  title  implies,  to  "  further 
provide  "  for  rapid  transit  whenever  required  by  the  growth  and  business  of  the 
city. 

Second.  That  under  said  act  corporations  may  be  formed  with  power  to  con- 
struct, operate  and  maintain  cable-traction  street  or  surface  railways  in  the  City 
of  New  York,  in  accordance  with  the  system  thoroughly  and  successfully 
tested  in  the  cities  of  San  Francisco  and  Chicago,  for  the  conveyance  of  pas- 
sengers and  property. 

The  advantages  claimed  for  the  cable  system  may  be  summarized  as  fol- 
lows : 

1.  The  steepest  grades  are  as  easily  worked  as  levels. 

2.  The  cars  may  be  stopped  instantly  or  slowed  gently  at  any  point  on  the 
line,  and  started  with  promptness,  ease  and  gentleness. 

3.  The  speed  can  be  established  at  any  rate  desired,  and  varied  on  any  por- 
tion of  the  road  to  accommodate  it  to  obstructions  in  the  way. 

4.  The  method  of  working  is  noiseless  and  even,  and  unaccompanied  by  any 
annoyance  whatever. 

5.  Perfect  cleanliness  of  track  is  secured,  an  important  sanitary  element  in 
the  system. 

6.  An  unlimited  capacity  of  increase  at  any  time  an  increase  may  be 
required. 

7.  Perfect  freedom  from  snow  blockade,  as  the  power  Is  sufficient  at  all 
times  to  remove  the  snow  as  fast  as  it  falls. 

Third.  That  there  is  urgent  need  of  this  form  of  rapid  transit  in  the  City  of 
New  York  on  many  convenient  routes  legally  open  to  its  introduction, 
especially  as  its  economies  of  construction,  operation  and  maintenance  would 
enable  it  to  carry  passengers  at  any  desirable  rate  of  speed  over  long  or  short 
distances  (stopping  like  the  horse-cars  at  all  street  crossings  to  take  on  and  let 
off  passengers)  for  a  five-cent  fare. 

Fourth.  That  the  capacity  of  the  elevated  roads  of  the  city  is  notoriously 
inadequate  to  the  demands  of  the  passenger  traffic  during  the  ' '  commission  " 
hours,  and  is  swiftly  growing  inadequate  to  the  demand  for  the  other  hours  of 
the  day. 


9 


Fifth.  That  each  of  your  applicants,  as  householders  and  taxpayers  of  the 
City,  County  and  State  of  New  York,  does  severally  depose  and  say  that  there 
is  need  in  said  city  and  county  for  a  steam  railway  or  railways  for  the  trans- 
portation of  passengers,  mails  or  freight,  and  that  such  need  exists  beyond  the 
facilities  afforded  by  the  steam,  surface  or  elevated  railroads  now  in  operation 
in  said  city  and  county. 

Wherefore  your  applicants  respectfully  apply  to  you  for  the  appointment  of 
five  commissioners  for  the  purposes  and  subject  to  the  duties  that  are  provided 
in  and  by  the  said  Rapid  Transit  Act. 

All  of  which  is  respectfully  submitted. 

In  response  to  this  demand,  Major  Edson  appointed  Commis- 
sioners. The  Commission  proceeded  to  the  performance  of  their 
duties.  That  Commision  was  not  the  first  one  that  had  been 
appointed  under  the  Hapid  Transit  act  of  1875.  Under  the  first 
Commission  the  elevated  railways  of  the  city  were  built.  Five 
other  Commissions  followed,  and  then  came,  as  the  last  and  final 
one,  the  Commission  from  which  the  petitioner  before  you,  The 
New  York  Cable  Railway  Company,  derives  its  origin.  This  last 
Commission  to  which  you  Commissioners  are  a  sequel,  was  appoint- 
ed November  30, 1883.  Now,  Honorable  Commissioners,  you  see 
where  we  are  in  point  of  genealogical  succession.  It  is  not  neces- 
sary for  me  to  tell  you  how  and  when,  in  minutia,  the  petitioner  I 
represent  before  you  became  a  corporation.  That  we  are  a  corpora- 
tion is  known  of  all  men,  and  there  is  nobody  here  as  objector,  nor 
can  there  be  any  legal  objector,  to  question  the  validity  of  our  cor- 
poration, until  the  Attorney- General  shall  appear  or  some  author- 
ity of  the  Legislature  shall  be  exhibited.  The  objectors  before 
you,  who  raise  law  questions  on  the  integrity  of  our  corporate 
capacity  are  as  children  that  play  their  baby  palms  against  the 
inertia  of  matter  vast  and  immovable  as  the  globe. 

Now,  this  question  whether  cable  roads  ought  to  be  built  as  a 
feasible  fact  on  the  routes  designated  and  fixed  by  Mayor  Edson's 
Rapid  Transit  Commission  is  my  question  to  argue  and  yours  to 
decide.  It  is,  in  fact,  the  only  question  before  you. '  You,  as 
Commissioners,  sitting  in  review  of  Mayor  Edson's  Commis- 
sioners, ought  to  attach  importance  to  their  decision. 

But  the  Mayor's  Commissioners,  after  all  the  proofs  before 
them — and  they  were  as  voluminous  and  pertinent  as  the  proofs 
that  have  been  laid  before  you — were  conscious  that  all  the  work 


10 


of  their  hands  would  be  unavailing  unless  approved  by  you  and  by 
the  Board  of  Aldermen.  It  has  happened,  therefore,  that  the 
petitioner  laid  its  case  before  the  last  Board  of  'Aldermen. 

It  is  a  matter  of  public  history  that  that  Board  was  restrained 
by  judicial  injunctions  from  taking  action  on  the  application  of 
my  petitioner  for  permission  to  construct  its  roads.  The  pro- 
ceedings were  craftily  delayed,  but  finally  dismissed.  Too  late, 
however,  in  the  expiring  hours  of  the  Board  came  the  dismissal 
to  enable  petitioner  to  urge  its  claims  upon  its  consideration. 

But  it  is  well,  and  I  thought  it  well  on  the  opening  of  this 
investigation,  that  I  should  communicate  to  you  the  report  of 
the  appropriate  committee  of  the  Board  of  Aldermen  on  our 
application.  Five  months  ago,  on  the  opening  of  your  investiga- 
tion, I  read  that  report ;  I  read  it  to  you  now,  to  show  you,  in  the 
light  of  the  proofs  we  have  produced,  that  if  injunctions  of  the 
Courts  had  not  intervened,  the  Board  of  -  Aldermen  ought  to,  and 
probably  would,  have  approved  our  system  for  intramural  transit. 
I  have  the  report  in  my  hand,  and  I  will  read  it  as  a  part  of  my 
argument.  I  read  it  because  it  should  be  known  of  all  men  that 
that  Board  of  Aldermen  would  in  all  likelihood  have  supported 
its  chosen  Committee,  had  it  not  been  for  a  judicial  injunction. 

Here  is  the  report : 

Your  Committee,  to  whom  was  referred  the  message  of  his  Honor  the 
Mayor  of  June  30,  1884,  transmitting  for  the  consideration  of  the  Board  the 
report  of  the  Commissioners  appointed  by  his  Honor,  November  30,  1883, 
pursuant  to  chapter  606  of  the  Laws  of  1875,  has  carefully  considered  the 
same. 

The  matter  of  that  message,  as  disclosed  in  the  documents  accompanying  it, 
seems  to  your  Committee  of  paramount  importance  on  the  subject  of  city 
transit.  It  seems  a  scheme  of  intramural  transit  involving  a  system  of  rail- 
ways longitudinally  on  the  east  and  west  sides  of  the  city,  from  the  Harlem 
river  to  the  Battery,  partly  elevated  and  partly  surface,  with  convenient  cross- 
town  lines  between  the  Harlem  river  and  the  Battery  to  connect  with  these 
longitudinal  or  axial  lines  on  the  east  and  west  sides  sides  of  the  city,  so  as  to 
reach  all  the  important  ferries  and  connect  with  the  present  elevated 
lines.  This  system  embraces  about  seventy  miles  of  road,  which,  if  completed, 
would  furnish  ample  and  desirable  facilities  for  our  uptown  residents 
on  the  east  and  west  sides  as  well  as  all  persons  needing  such  facilities 
in  the  middle  and  lower  parts  of  the  city.  This  system  gives  for  a 
single  five-cent  fare  a  passage  over  all  these  seventy  miles  in  a  con- 
tinuous ride.    Such  a  scheme  of  city  transit  should  not  be  rejected  if 


11 


its  pretentions  can  be  found  practicable.  And  coming  to  your  Com- 
mittee, as  it  does,  with  the  recommendation  of  the  Mayor's  Commission,  con- 
sisting of  Edwin  R.  Livermore,  Thomas  E.  Stewart  (the  former  Park  Com- 
missioner), Edmund  D.  Randolph,  Joseph  X.  DeVeau  and  Edward  L.  Hedden, 
the  latter  three  being  presidents  of  the  leading  banks  of  the  city,  and  presided 
over  by  Edwin  R.  Livermore,  a  wealthy  merchant,  eminent  for  his  services  in 
freeing  the  Erie  Canal  from  tolls,  and  admittedly  sagacious  in  all  questions 
involving  the  commercial  needs  in  the  way  of  transportation  in  this  metropolis, 
your  Committee  could  not  fail  to  carefully  consider  the  merits  of  that  scheme. 
The  advocates  of  it  have  been  before  us  frequently,  attended  by  representatives 
of  the  largest  property-owners  of  the  city  ;  and  from  them  and  many  other 
sources  we  have  become  informed  as  to  the  merits  of  the  cable  plan  of  operat- 
ing street  surface  and  elevated  railways.  It  is  common  fame  that  Peter 
Cooper,  of  honored  memory,  for  several  years  before  his  death  urged  the  cable 
plan  as  the  only  proper  plan  of  city  transit,  whether  for  surface,  elevated  or 
underground  railways.  But  your  Committee  has  not  felt  that  it  ought  to 
recommend  the  comprehensive  scheme  of  transit  proposed  by  the  Mayor's  Com- 
missioners without  a  most  careful  scrutiny.  A  majority  of  the  Committee  have 
visited  Chicago  since  the  recommendations  of  the  Commissioners  were  laid  before 
us  by  the  Mayor  ;  and  we  found  in  that  city  a  cable  road  in  operation.  It  was 
the  most  important  surface  street  railroad  in  Chicago,  and  second  to  none  for 
extent  of  traffic  and  public  accommodation  in  any  city  of  the  world.  It  carries 
daily  an  average  of  over  120,000  passengers,  or  nearly  43,000,000  yearly.  It  goes 
into  and  passes  through  the  parts  of  the  city  most  thronged  by  vehicles  and 
pedestrians.  It  turns  sharp  corners  with  facility.  It  slacks  and  hastens  speed 
at  the  will  of  the  driver.  It  pleases  the  people  of  all  classes,  and  is  everywhere 
and  by  everybody  referred  to  as  one  of  the  chief  attractions  and  benefits  of  the 
city.  A  part  of  Chicago  through  which  this  road  is  operated  is  crowded  and 
choked  with  traffic  as  is  our  city  at  Ann  and  Fulton  streets  at  Broadway. 

Your  Committee,  being  confirmed  as  to  these  facts,  has  made  it  a  matter  of 
careful  inquiry  to  ascertain  all  the  merits  of  the  cable  system.  The  details  of 
information  in  our  possession  are  too  many  to  particularize  ;  but  they  may  be 
summarized  briefly  as  follows  : 

It  gives  speed  without  danger. 

It  gives  a  constant  service  irrespective  of  snow  and  ice. 
It  gives  unlimited  supply  of  transit  facilities  on  any  given  route,  and  a  seat 
for  all — there  is  no  standing  room  needful  to  occupy. 

It  fails  neither  in  summer  heat  or  winter  frost.  Storms  of  snow,  wind  or 
rain  cannot  retard  or  prevail  against  its  uniform  and  steady  service.  The 
sanitary  considerations  involved  in  its  substitution  for  animal  power  (wherever 
animal  power  may  not  be  prudently  dispensed  with)  distinguish  health  from 
pestilence.  These  are  but  some  of  the  advantages  of  the  cable  system,  and 
when  presented  to  the  city  with  the  scheme  of  the  Mayor's  Commissioners, 
involving,  as  it  does,  transit  up-town,  down-town,  cross-town  for  a  single  fare 
of  five  cents,  on  a  line  of  seventy  miles  of  road,  which  proposes  such  immense 
facilities  for  rich  and  poor,  we  can  but  recommend  its  adoption  because  we  find 
that  it  is  practicable. 


12 

Your  Committee  therefore  recommends  the  adoption  of  the  following 
resolution  : 

Resolved,  That  this  Board,  on  behalf  of  the  corporate  authorities  of  the  City 
of  New  York,  hereby  gives  consent  to  the  routes,  parts  of  routes  and  branches 
adopted  by  the  Commissioners  appointed  by  the  Mayor,  November  30,  1883,  as 
contained,  described  and  set  forth  in  the  Articles  of  Association  of  the  New 
York  Cable  Railway  Company,  transmitted  to  this  Board  as  part  of  the  report 
of  said  Commissioners,  by  the  Mayor,  June  30,  1884,  which  Articles  of  Asso- 
ciation are  a  component  part  of  the  Charter  of  said  company,  and  as  such  wrere 
filed  in  the  office  of  the  Secretary  of  State,  and  in  the  office  of  the  Clerk  of  the 
County  of  New  York,  April  22,  1884  ;  and  further,  that  this  Board,  on  behalf 
of  the  corporate  authorities  of  the  City  of  New  York,  hereby  gives  consent  to 
the  construction,  maintenance  and  operation  by  the  New  York  Cable  Railway 
Company  of  the  several  railways  mentioned  and  described  in  said  Articles  of 
Association,  upon  the  several  routes,  parts  of  routes  and  branches  of  routes 
fixed  and  determined  by  said  Commissioners,  and  in  the  forms,  manner,  and 
under  the  terrns  and  conditions  fixed  and  described  by  said  Commissioners  and  set 
forth  in  said  Articles  of  Association,  and  also  gives  consent  on  behalf  of  the  corpo- 
rate authorities  of  the  City  of  New  York  to  the  said  company  to  remove  pavements 
and  crosswalks  on  said  routes,  parts  of  routes  and  branches,  and  do  thereon 
the  necessary  digging  and  excavating  for  constructing,  maintaining,  operating 
and  using  steam  railways  for  public  use  in  the  conveyance  of  persons  and 
property  in  cars  for  compensation  in  the  City  of  New  York,  and  for  building 
and  laying  tracks  for  said  steam  railways  and  for  all  the  necessary  appurte- 
nances thereto,  and  for  maintaining  and  operating  and  using  said  steam  railways 
on  said  routes,  parts  of  routes  and  branches  for  the  purposes  aforesaid,  pursuant 
to  the  terms  and  conditions  prescribed  and  fixed  by  the  said  Commissioners  in 
said  Articles  of  Association  of  said  New  York  Cable  Railway  Company ; 
provided,  however,  that  said  The  New  York  Cable  Railway  Company  pay 
annually  on  or  before  the  31st  of  January  in  each  and  every  year,  to  the 
Comptroller  of  the  City  of  New  York,  for  the  use  of  said  City,  two  and  one- 
half  per  centum  of  its  net  earnings  for  and  during  the  preceding  calendar  year, 
as  a  compensation  for  the  franchises  acquired  by  said  company  pursuant  to 
chapter  606  of  the  Laws  of  1875,  and  the  amendments  thereof,  such  compensa- 
tion to  be  in  addition  to  all  taxes  said  company  may  be  liable  for,  or  which  may 
be  imposed  thereon  pursuant  to  law. 

C.  B.  Waite, 
Robert  E.  De  Lacy, 
Charles  Dempsey, 
Wm.  H.  Miller, 


Committee 

on 

Railroads. 


Now,  I  ask,  why  should  the  courts  have  granted  injunctions 
to  restrain  the  Board  of  Aldermen  from  consenting  to  such  a 
system  of  intramural  transit  as  the  Report  of  their  Railroad 
Committee  describes  ?  Who  obtained  those  injunctions  %  It  is 
my  duty  to  tell  you.    Who  perpetrated  the  judicial  interference  ? 


13 


You  have  experienced  that  interference  in  this  investigation. 
You  know  that  for  five  weeks  jour  powers  were  held  in  abeyance 
by  the  same  interfering  hand.  Xow  I  ask  you  to  consider  whose 
hand  that  is,  or  was.  If  you  are  troubled  to  identify  that  hand, 
let  me  remind  you  that  in  the  foreground  of  the  opposition  that 
I  am  contending  against  stand  fifteen  horse-railroad  corporations. 

First,  the  Broadway,  Lexington  and  Fifth  Avenue  Railroad. 
2d.  The  Central  Park,  North  and  East  River  Railroad.  3d.  The 
Chambers  Street  and  Grand  Street.  1th.  The  Christopher  Street 
and  Tenth  Street  Railroad,  oth.  The  Dry  Dock,  East  Broadway 
and  Battery  Railroad.  6th.  The  Forty-second  Street  and  Grand 
Street  Ferry  Railroad.  7th.  The  Forty-second  Street  and 
Manhattan ville.  8  th.  The  Houston,  West  Street  and  Pavonia 
Ferry.  9th.  The  One  Hundred  and  Twenty-fifth  Street  Railroad 
Co.  10th.  The  Second  Avenue  Railroad  Co.  11th.  The  South 
Ferrv  Railroad  Co.  12th.  The  Third  Avenue  Railroad  Co.  13th. 
The  Twenty-third  Street  Railroad  Co.  llth,  The  Thirty-fourth 
Street  Railroad  Company.  15th,  The  Broadway  and  Seventh 
Avenue  Railroad  Company. 

I  include  in  this  list  all  those  horse  railroads  that  are  born  and 
in  being  and  in  operation,  and  those  which  are  sought  to  be  built. 

I  want  the  fact  known  that  these  opponents  are  opponents 
representing  existing  horse-railroad  companies,  and  horse-railroad 
companies  that  wish  to  exist,  mere  franchise  hunters;  which 
latter  are  very  much  in  the  condition  of  the  infant  maid  that 
William  Wilberforce  met  on  the  streets  of  London,  and  on  whose 
baby  brow  the  great  philanthropist  read  the  reeking  word, 
"  wanton,"  and  to  whom  he  said  "  I  hope,  my  child,  you  .are  not 
a  bad  girl  ? "  and  she  answered,  "  Xo,  but  I  'opes  to  be.'' 

I  want  to  show  here  that  the  only  strenuous  objection  arises 
from  horse-railroad  corporations  that  exist,  and  from  franchise 
hunters  who  want  franchises  that  are  assigned  to  our  cable  system 
and  which  they  hope  to  get  for  horse  railroads.  I  call  these 
latter  u  franchise-jumpers,"  for  they  seek  the  ground  the  law  has 
given  us  to  occupy.  Later  on  I  shall  show  their  fraud  and  their 
folly. 

Such  are  our  opponents  ;  outside  of  them  I  see  but  little 
opposition  of  consequence.  In  William  street,  for  instance,  there 


14 


is  an  opposition  on  the  part  of  the  property- owners  which  extends 
from  Wall  street  to  the  Brooklyn  Bridge — a  distance  of  2,800  feet 
in  the  decayed  or  decaying  portion  of  that  unthrifty  street.  There, 
the  opposition  may  be  said  to  be  unanimous.  But  the  gentlemen 
representing  that  opposition  have  frankly  told  you  that  they  have 
visited  those  property-owners  and  solicited  them  to  allow  them  to 
come  before  you  and  make  opposition.  I  gather  this  from  the 
counsel's  own  lips  on  his  argument,  and  he  won't  deny  it. 

Now,  I  know  that  it  is  a  very  common  matter  for  bustling  attor- 
neys, not  over  absorbed  in  general  practice,  to  visit  property-owners 
on  a  particular  street  and  say  to  them  a  variety  of  things  that 
would  induce  them  to  join  in  opposition  to  a  scheme  of  transit 
like  the  one  proposed  by  the  petitioner,  provided  alivays,  attor- 
neys and  counsel  shall  charge  little  or  nothing  for  services  in 
making  opposition.  It  is  not  a  case  of  audi  alteram  partem ; 
it  is  a  case  of  one-sided  misrepresentation.  They  say  to  a 
property-owner,  "  If  you  will  refuse — and  this  road  is  built — 
we  will  have  a  right  of  action,  a  la  Story  against  the  Elevated 
Railroad ;  or  if  you  refuse  and  make  opposition,  why  probably 
the  railroad  company  will  give  you  some  of  its  stock,  as  Mr. 
Gebhardt,  the  father  of  Freddy,  the  illustrious  jeunesse  doree  of 
the  bewitching  Langtry  demanded,  whose  demand  appears  in  the 
affidavits  which  our  adversaries  have  presented,  wherein  he  says  : 
"If  I  could  have  compensation  for  signing  on  Lexington  avenue 
on  my  property,  I  would  sign. "  The  case  these  attorneys 
present  to  the  property-owner  is  generally  stated  so  as  to 
appeal  to  his  cupidity  or  his  vanity  by  making  him  of 
importance  as  a  qualified  obstructionist  —  qualified  by  his 
loud  proclaimed  ownership  of  property;  or,  by  appeal  to 
his  timidity  arising  from  the  apprehension  that  public  improve- 
ment affecting  his  property  may  possibly  depreciate  it.  I  could 
enumerate  a  score  of  other  reasons  of  most  unworthy  character 
which  induces  property  owners  to  make  objections.  All  these 
invitations  to  opposition  are  artfully  addressed  to  the  property- 
owner  so  that  his  mind  is  left  in  no  condition  to  consider  the 
merit  of  the  proposed  improvement,  or  to  listen  to  the  arguments 
of  its  promoters ;  such  an  objector  (assuming  that  he  has  not  been 
"worked"  knowingly  or  unknowingly  by  the  horse  railroad  inter- 


15 


est  as  is  the  case  with  nearly  all  that  class  of  objectors  who  have 
appeared  before  this  Commission),  especially  as  his  opposition  is 
inexpensive,  is  not  inclined  to  consider  the  advantages  of  the 
proposed  improvement  to  his  own  or  the  public  interest,  and  is 
little  likely  to  say  to  the  canvassing  attorney,  "  I  will  consult  the 
projectors  of  the  improvement  before  granting  my  authority  to 
oppose  it  —I  will  hear  their  arguments."  No  !  Such  an  objector 
is  not  suffered  to  be  left  by  the  canvassing  attorney  in  that  con- 
dition of  mind.  So  people  may  be  stimulated  upon  industrious 
application  of  active  attorneys  or  agents  to  withhold  the  consents 
we  need,  or  even  unite  in  opposition,  if  it  don't  cost  much,  for  the 
purpose  of  having  claims  for  damages  or  getting  our  stock  free. 
There  are  some  other  objectors,  all  of  whom  I  now  enumerate: 

First. — The  objectors  who  oppose  our  main  axial  line  because 
it  must  pass  tlirough  Gramercy  Park ;  as  if  a  main  artery  of 
traffic,  on  the  east  side  of  the  city,  from  the  Harlem  river  to  the 
Battery,  and  a  distributor  of  traffic  from  river  to  river,  should 
be  tourniquetted  at  that  Park,  and  its  flow  arrested  and  destroyed 
because  of  that  private  park,  owned  by  the  householders  around 
it,  in  a  region  of  the  city  that  for  the  last  twenty  years  has  been 
known  as  "  Boarding -House  Square"!  The  clamor  of  these 
people  induced  me  to  invoke  the  taste  and  judgment  of  Calvert 
Yaux  as  to  whether  or  not  such  changes  in  that  Park  could  be 
made,  and  yet  allow  the  cable  road  through  it,  as  would  result  in 
beautifying  it.  The  suggestion  that  induced  me  to  do  this  came 
from  one  of  our  most  distinguished  citizens — a  citizen  whose 
incorruptible  integrity  in  the  administration  of  the  fiscal  affairs 
of  this  city  makes  us  think  of  Aristides.  I  acted  on  his  sugges- 
tion. I  communicated  with  Mr.  Yaux,  who  is  known  as  the  fore- 
most landscape  artist  (as  well  as  a  great  architect)  on  this  continent. 

I  stated  the  case.  He  at  once  said  to  me  :  u  The  Park  is  now 
as  fiat  and  uninteresting  as  any  such  plot  of  ground  can  be,  un- 
adorned and  unimproved  by  art.  I  will  present  you  three  draw- 
ings, one  showing  how  the  Park  now  is,  one  showing  how  the 
Park  could  well  be  and  accommodate  your  cable  road,  and  another 
showing  how,  with  Koman  gateways,  and  arches  and  labyrinths 
and  staircases  for  exits  and  entrances,  it  might  be  a  thing  of 
beauty  and  interest." 


16 


These  drawings  have  been  laid  before  yon  as  a  part  of  onr 
proofs.  I  know,  from  the  open  satisfaction  yon  expressed  at  the 
time  they  were  offered  that  yon  conld  see  how  Gramercy  Park 
conld  be  an  ornament  to  the  city,  and  more  useful,  more  valuable, 
more  beautiful,  if  Mr.  Yaux's  plans  should  be  adopted.  Mr. 
Yaux's  affidavit  accompanies  his  plans.  To  conciliate  our  oppon- 
ents, I  struck  off  one  hundred  photo-lithograph  copies  of  them  and 
sent  them  to  each  householder,  and  challenged  their  attorney,  Mr* 
Yarnum,  to  say  whether  or  not  if  we  would  make  the  necessary 
changes,  in  conformity  with  these  plans,  at  our  own  expense,  he 
would  not  withdraw  this  opposition.  What  answer  did  he  make  ? 
You  heard  it. 

This  answer  was  substantially :  "  We  are  not  on  the  art  of 
the  question  nor  the  beautification  of  the  grounds,  but,  if  this 
road  must  go  through  the  Park,  we  want  to  sell  to  this  company 
the  space  of  two  city  lots  on  each  side  of  it." 

That  ended,  of  course,  the  sesthetical  question.  We  offered 
before  you  to  make  the  adornments  suggested  by  Mr.  Yaux, 
which  would  make  the  Park,  not  what  it  is  now — a  dreary 
uniformity — but  an  undulating,  classically-fashioned,  umbrageous, 
path-adorned,  flower-bedded  and  in  all  aesthetic  ways  diversified 
by  fountains  and  by  trees  and  plants,  if  they  would  permit  our 
road  to  pass  through  it.  This  they  declined.  There  is  urged 
before  you  in  support  of  that  declination  the  affidavit  of  Ex- 
Governor  Tilden,  the  sage  of  Grey  stone,  who,  by  the  ordinances 
of  nature,  on  account  of  the  infirmities  of  age,  may  never  visit 
Gramercy  Park  again.  This  affidavit  is  made  to  do  duty  here. 
In  it  it  is  stated :  that  no  more  transit  facilities  are  needed  in 
this  city,  and  that  Route  No.  1,  our  great  east-side  axial  route, 
is  especially  unnecessary ;  that  such  axial  line  spoils  his  lot  and 
premises  fronting  the  Park.  He  protests  against  it  as  an  act  of 
vandalism. 

It  will  readily  occur  to  you  how  selfishness  grows  with  age  and 
feebleness,  when  you  remember  that  he  promoted  our  elevated 
lines  and  thundered  his  locomotives  close  by  the  windows  of  the 
residential  portion  of  our  city,  and  destroyed,  as  the  Courts  have 
declared,  millions  of  property  used  for  residential  and  business 
purposes.   Like  an  enormous  Juggernaut,  all  private  properties 


17 


had  to  submit  to  the  nuisance  and  noisome  operation  of  elevated 
roads — I  may  say  his  elevated  roads,  out  of  which  he  more  than 
doubled  his  then  enormous  fortune,  and  has  thereby  made  himself 
one  of  the  richest  men  of  America.  Like  a  ruthless  Goth  he 
plundered,  pillaged,  encroached  upon  private  rights,  the  peaceful- 
ness  of  firesides ;  and  now  he  cries  out  like  a  sick  girl  against  the 
public  necessity  that  demands  a  transit  through  a  park  which  Mr. 
Yaux  shows  will  be  enhanced  in  beauty  by  our  transit,  for  the 
reason  that  he  apprehends  that  it  may  hurt  his  "  city  lot." 

The  same  may  be  said  of  the  statements  in  Abram  S.  Hewitt's 
affidavit,  who  made  like  money  on  the  elevated  railways  in  a  like 
way,  and  who  likewise  lives  on  Gramercy  Park.  This  looks  to 
me  like  selfish  hypocrisy. 

Second.  —  Jacob  Sharp's  objection  about  Twenty-second 
street : 

All  the  proofs  offered  on  this  subject  were  gotten  up  two 
years'  ago  to  be  used  by  him  before  the  Legislature.  I  met  them 
there  before  committees  in  his  hands,  where  they  were  based  on 
the  same  Crowley  affidavit  now  before  you,  to  the  effect  that  the 
cable  roads  in  Chicago  were  but  another  name  for  calamity  and 
scorn  in  that  city.  All  this  is  now  stale  matter — not  then  under- 
stood as  we  now  understand  it  in  the  sunlight  of  publicity.  It 
cuts  no  figure  here,  knowing  what  you  know,  from  the  proofs 
before  you.  You  may  exclaim  with  Ophelia,  on  this  evidence, 
"To  have  seen  what  I  have  seen,  see  what  I  see." 

Third. — The  objections  to  our  Broome  Street  Route  all  came 
from  Jacob  Sharp,  and  are  based  on  the  Crowley  variety  of 
expert  testimony — that,  and  nothing  more.  It  is  presented  and 
indorsed  by  his  counsel  here.  The  school-house  suggestion  on 
Fourth  street,  and  the  wanton-house  suggestion  on  Thirteenth 
street,  alike  seem  to  have  been  managed  by  Mr.  Jacob  Sharp — 
all  under  fear  that  we  would  parallel  his  horse-railroads  on 
Twenty-second  street,  Thirteenth  street,  Fourteenth  street  and 
Broome  street. 

That  is  the  sum  and  substance  of  all  the  noticeable  objections 
that  we  have  had  here  from  any  quarter  whatever,  except  on  Lex- 
ington avenue,  where  the  majority  of  the  citizens,  as  we  have  shown 
2 


18 


in  the  proofs  laid  before  you,  favor  our  cable  road.  I  ought, 
also,  to  except  Mr.  Wheeler  H.  Peckham's  objections  on  behalf 
of  some  property  owners  on  Madison  avenue ;  they  are,  however, 
almost  too  trivial  to  remember,  in  the  light  of  the  industrious 
attorney  business  I  have  exposed.  I  know  but  one  man  who 
seemed  to  have  thrown  the  earnestness  of  his  soul  into  the 
business  of  opposition.  He  is  Mr.  Ross,  and  the  Commission 
may  have  observed  that  I  have  not  concealed  my  desire  to  conciliate 
Mr.  Ross  and  make  him  feel  that  there  wonld  be  no  injury  to 
him  if  the  road  should  be  constructed.  He  may  be  perfectly 
sincere  in  his  opposition.  He  is  a  builder  and  a  business  man,  and 
has  been  for  many  years,  and  these  builders  are  not  children  in  the 
matter  of  personal  advantage  and  an  eye  to  their  own  interests, 
and  he  probably  may  have  some  object  in  view,  as  Freddy  Geb- 
hardt's  father  has,  distinct  from  the  public  interest,  to  promote  his 
own  advantage  aside  from  the  special  object  of  protecting,  as 
he  says,  that  particular  piece  of  property  he  owns  on  William 
street.  I  am  not  at  liberty  to  forget  that  one  of  these  build- 
ers, Buddensiek,  was  only  yesterday  sentenced  to  the  State 
prison  for  ten  years.   As  a  class  they  are  not  altogether  worthy. 

This  is  the  opposition,  substantially.  How  has  that  opposition 
worked?  Our  adversaries,  after  a  five-months'  investiga- 
tion, have  disclosed  their  purposes  by  filing  an  application 
in  the  office  of  the  Secretary  of  State,  claiming  that  the 
routes  which  we  have  apjilied  for  are  needful  and  desira- 
ble for  horse  railroads.  I  have  here  their  articles  of  association, 
filed  in  the  office  of  the  Secretary  of  State  only  a  day  or  two  since, 
for  roads  over  Liberty  street,  and  Cortland  street,  and  Maiden 
Lane  and  in  William  street,  and  down  Wall  street.  These  articles 
contain  the  name  of  Daniel  D.  Conover,  who  is  president  of  the 
Forty-second  street,  Manhattanville  and  St.  Nicholas  Avenue 
Railroad,  represented  by  Mr.  Trull  and  by  the  brilliant  talents  of 
Mr.  Coudert,  and  also  by  Colonel  Wagstaff,  Vice-President,  or 
Treasurer,  as  he  says,  of  the  same  railroad. 

I  have  also  here,  officially  certified,  articles  of  association  of 
another  company,  filed  only  yesterday  in  the  office  of  the  Sec- 
retary of  State,  which  seeks  to  appropriate  some  forty  other  miles 
of  our  routes  in  the  cen+ral  and  upper  part  of  the  city,  includ- 


19 


ing  all  of  Lexington  avenue,  to  the  use  of  proposed  horse  railroads. 
The  names  subscribed  to  these  articles  indicate  unmistakably  that 
the  Secretary  of  the  Navy,  William  C.  Whitney,  late  Corporation 
Counsel  of  the  City  of  New  York,  Jacob  Sharp,  and  a  combination 
of  Philadelphia  capitalists,  among  whom  is  "  Bill "  Kemble,  of 
"  addition,  division  and  silence "  notoriety,  are  the  projectors. 
The  Sharp  ear-mark  appears  in  these  articles  by  two  of  his 
well-known  henchmen,  one  of  whom  is  the  Superintendent  of  his 
Twenty-third  Street  Railroad.  Secretary  Whitney  and  Kemble 
appear  in  the  articles  by  their  notorious  colleagues  and  partners 
Elkins  and  Widner  of  Standard  oil  and  Philadelphia  horse 
railroad  fame. 

Here  is  richness — I  promised  to  show  you  the  fraudulent 
character  of  this  opposition.  Behold  it !  I  cannot  contemplate 
with  patience  what  is  proven  by  these  articles  of  incorporation. 
They  show  that  you  have  been  detained  here  weeks  and  weeks  to 
listen  to  a  shamefully  fraudulent  opposition,  made  with  every 
profession  of  good  faith  as  in  the  public  interest  against  the 
cable  railways  proposed  by  the  petitioner,  on  the  ground  that 
public  convenience  did  not  require  railroads  of  any  sort,  cable  or 
horse,  on  the  surface  lines  laid  out  bv  Mavor  Edson's  Commis- 
sioners. 

But  these  articles  disclose  a  darker  and  deeper  stain  of  fraud 
and  venality,  which  are  known  to  be  common  attributes  of 
horse-railroad  managers  and  projectors  when  pursuing  schemes  to 
protect,  gain  or  enlarge  their  franchises.  To  them  the  covert  lie — 
the  venal  gift — the  flagrant  bribe  or  falsehood — are  notoriously 
trivial  and  common  matters.  But  when  we  find  a  public  officer 
contributing  to  their  nefarious  work  out  of  the  public  Treasury, 
at  the  expense  of  the  taxpayers  of  the  city,  as  the  Counsel 
to  the  Corporation  is  doing  here,  a  more  serious  aspect 
is  presented.  Again  and  again  I  have  challenged  the  right 
and  propriety  of  the  Counsel  to  the  Corporation  to  appear 
here  in  the  name  of  the  Mavor,  Aldermen  and  Commonaltv  of 
the  City  of  New  York,  but  with  unabashed  face  he  has  persisted 
in  that  appearance,  and  this  Commission  knows  that  nine-tenths 
of  the  expense  and  proofs  of  the  opposition  in  this  inquiry  has 
been  borne  out  of  the  city  treasury  by  direction  and  on  the  mere 


20 


motion  of  the  Counsel  to  the  Corporation,  who  is  represented 
here  by  his  brilliant  assistant,  Mr.  Wickes,  without  any  warrant 
whatever  from  the  competent  corporate  authorities  of  the  city,  the 
Common  Council,  which  is  charged  specially  by  statute  with  the 
duty  and  responsibility  of  deciding  whether  or  not  the  cable 
railways  of  the  petitioner  should  be  built. 

Not  only  has  the  Corporation  Counsel's  office  incurred  this  un- 
warranted expense  and  made  this  unwarranted  appearance,  but 
the  evidence  collected  by  its  much  indorsed  Sterling  and  its 
other  agents  has  been  demonstrated  to  be  perjured  and  false, 
I  characterized  it  before  you,  shortly  after  the  taking  of  proofs  was 
closed  and  before  the  summing  up  on  either  side  began,  as  the 
product  of  perjury  and  subornation  of  perjury,  and  I  was  per- 
mitted to  make  overwhelming  proof  of  my  charge  by  the  intro- 
duction of  the  affidavits  of  Mr.  Holmes  and  the  stenographer 
Edwards.  I  have  placed  that  office  upon  an  eminence  of  infamy 
beyond  the  reach  of  rescue  or  explanation.  My  associate,  Mr. 
Wheeler,  unites  with  me,  as  I  feel  that  you  must  do,  in  pro- 
nouncing Sterling's  evidence  a  perjurious  suppression  and  mis- 
statement of  the  matters  about  which  he  testilied,  and  the 
evidence  collected  by  him,  to  which  others  made  oath,  as 
perjuriously  suborned.  The  proof  I  presented  of  these  charges 
was  not  only  by  the  mouths  of  two  or  more  unimpeachable  wit- 
nesses, but  by  incontestible  documentary  evidence. 

By  appearing  here  to  oppose  the  necessary  consent  of  abutting 
owners,  whose  consent  you  are  to  give  if  the  Court  approve,  the 
Corporation  Counsel  is  attempting  to  make  ineffectual  the  equally 
necessary  consent  of  the  city,  should  the  city  decide  to  give  it. 
So  that  I  see  that  he  is  exerting  himself  here  to  make  the  citv's 
consent  ineffectual  should  it  give  it  or  wish  to  give  it.  Thus  he 
seeks  to  deprive  it  of  its  autonomy  and  participation  in,  and 
absolutely  cut  it  off  from,  its  right  or  duty  to  participate.  What 
sort  of  a  position  is  that  for  a  lawyer  to  sustain  to  his  client  1  If 
the  city  want  our  cable  roads,  and  shall,  after  a  proper  inquiry, 
decide  it  wants  them,  through  its  Common  Council,  the  Corpora- 
tion Counsel  is  here  endeavoring  to  pre  vent  its  ever  having  them. 
Is  that  a  proper  position  for  counsel  to  be  in  ?  Is  he  here  hedg- 
ing under  a  bargain  and  contract  with  some  outsider,  that  the  city 


21 


shall  never  have  an  opportunity  to  say  whether  it  will  consent  or 
not  ?  For  of  what  possible  use  oonld  the  city's  consent  be  with- 
out the  abutting  owners'  consent  ?  These  two  consents  must  go 
together,  to  complete  authority. 

Now,  the  Corporation  Counsel  is  here  trying  to  prevent  abut- 
ting owners  from  consenting.  Don't  he  know  that  if  he  succeeds 
the  city's  consent  would  be  a  vain  thing  ?  Of  course,  he  does  ! 
Though  the  Mayor,  Aldermen  and  all  the  city  officials,  hat  in 
hand,  should  appear  before  you  and  demand  cable  roads  and 
should  vote,  ordain  and  declare  them  useful,  needful  and  neces- 
sary— should  they  come  here  in  this  plight,  are  you  to  tell  them 
that  the  Corporation  Counsel  has  been  here,  and  is  here,  to  tie 
you  up  and  to  show  that  you  can't  have  these  roads  because  he  has 
convinced  you  that  the  abutting  owners  ought  not  to  consent  to 
have  them  ?  What  sort  of  a  situation  is  this  for  counsel  to  be  in  ? 
There  was  a  counsel  in  Israel ;  he  was  a  sort  of  lord  chancellor  to 
King  David,  and  had  an  intrigue  on  both  sides  of  the  court.  He 
advised  many  villainous  things  and  gained  confidence  out  of  his 
supposed  wisdom  and  the  integrity  of  his  counsels.  "  And  the 
counsel  of  Ahithophel,  which  he  counseled  in  those  days,  was  as 
if  a  man  had  inquired  at  the  oracle  of  God  ;  so  was  all  the  counsel 
of  Ahithophel  both  with  David  and  with  Absalom." 

This  story  is  an  interesting  one  and  may  be  found  II.  Samuel, 
xvi.  and  xvii. 

The  Corporation  Counsel  may  find  it  a  precedent  which 
describes  the  difference  here  between  him  and  me. 

Now,  I  ask,  why  is  the  office  of  the  Counsel  to  the  Corpora- 
tion here  in  this  strained,  compromised  and  degraded  attitude  ? 
It  is  my  duty  to  name  the  reason  why.  William  C.  Whitney, 
the  former  Counsel  to  the  Corporation,  the  present  Secretary  of 
the  Navy  and  an  influential  leader  in  our  municipal  politics, 
retains  a  surviving  influence  such  as  might  be  expected  to  inure 
to  one  who  has  named  his  own  successor  over  the  Corporation 
Counsel's  office,  and  in  association  with  the  Philadelphia  parties 
I  have  named,  becomes  a  partner  in  the  horse-railroad  schemes  of 
Jacob  Sharp.  He  uses  that  influence  to  constrain  the  present 
Corporation  Counsel  to  lend  him  and  Jacob  Sharp  the  power  and 
influence  and  resources  of  that  office,  involving,  as  they  do,  large 


22 


expenditures  from  the  City  Treasury,  to  oppose  the  petitioner's 
system  of  cable  railways,  to  the  end  that  Jacob  Sharp  and  the 
Philadelphia  combination  may  acquire  horse-railroad  franchises 
on  the  routes  designated  for  our  cable  railways. 

The  law  abhors  busy-bodies.  Fifteen  horse  railroads  come 
here  and  shout,  with  the  Corporation  Counsel,  "  This  Cable 
Company  can't  be  made  to  hand  over  the  pound  of 
flesh  provided  in  the  bond  due  to  the  city  in  case  of 
defeasance  in  any  particular."  This  solicitude  is  too  silly  to 
discuss,  Every  one  of  those  roads  have  notoriously  defaulted 
for  years  in  the  payment  of  their  inadequate  licenses  to  the  city, 
and  there  is  a  popular  suspicion  afloat*  that  they  get  immunity 
from  the  payment  of  those  licenses  by  corrupting  the  law  officers 
of  the  city.  I  mean,  and  may  bluntly  say,  Ahitophel.  What 
are  we  to  do  with  such  a  situation  as  I  have  exposed  here  ? 

There  is  Sterling !  I  have  put  the  brand  of  gross,  bold  per- 
jury on  him.  He  was  the  city's  deputy.  I  am  sorry  that  this 
was  our  necessity.  It  may  have  been  his  necessity  to  do  the  per- 
jury, like  the  poor  apothecary  in  the  play.  He  was  the  city's 
deputy.  He  was  sent  forth  by  the  Counsel  to  the  Corporation. 
"Was  he  instructed  and  paid  to  play  a  trick  ?  Did  he  lend  him- 
self to  a  dishonorable  employment  ? 

Well !  well !  well ! 

But  Sterling  is  an  unsterling  trifle  in  this  discussion.  I  return 
to  the  office  of  the  Counsel  to  the  Corporation  of  the  City  of 
New  York.  In  the  interlocutory  discussions  before  you  about 
Steeling,  I  had  a  notion,  and  unfolded  it,  that  there  was  the 
stimulation  of  "  Peruvian  bark  "  within  him.  I  meant  the  Mayor 
of  the  city,  and  you  know  it.  I  am  now  satisfied  that  the  Sec. 
retary  of  the  Navy — a  cabinet  officer  of  President  Cleveland — 
has  brought  the  opposition  of  the  Corporation  Counsel  here.  I 
welcome  it.  I  know  it.  I  feel  a  timid,  but  audacious,  hand 
upon  my  sleeve  as  I  speak.  Its  touch  carries  suggestion  of 
corruption  in  every  branch  of  the  municipal  administration  of 
the  city.  It  carries  it  into  State  and  National  politics.  The 
world  is  wide  enough  for  that  man  and  me.  The  wide,  wide  sea 
has  got  enough  boat-room,  JohnEoach's  "Dolphin"  included,  for 
him  and  me  !   Our  poetical  Commissioner  of  Public  Works  might 


23 


turn  all  this  into  sonorous  and  exquisite  verse.  If  he  plies  his 
"  prentiss  hand  "  to  the  work,  let  him  tell  us  about  Mackey's  and 
Birdsell's  testimony — the  testimony  of  two  of  his  subordinates. 

Let  him  say  whether  it  comes  by  "  Grace"  as  has  been  face- 
tiously suggested,  or  by  the  Secretary  of  Uncle  Sam's  "  Navee." 

Let  us  now  look  into  the  propriety  and  right  of  the  Counsel 
to  the  Corporation  appearing  here.  Let  him  justify  his  appear- 
ance. Can  he  say  that  the  Constitutional  Amendment  of  1875,  or 
the  Rapid  Transit  Act  of  1875,  or  the  Surface  Railroad  Act  of 
1884,  or  any  clause  in  the  ancient  or  modern  charters  of  the  city 
brought  him  here?  No.  Emphatically  No.  Why,  then,  is  he 
here,  playing  busy-body  ? — bothering  you  and  using  the  city's 
money  to  make  opposition  to  me. 

Who  has  paid  for  the  large  maps  hanging  on  your  walls  ? 
Who  has  furnished  the  printed  volumes  of  evidence  that  convict 
its  author  at  a  single  shot  of  both  hate  and  impotence  ?  From 
what  source  springs  this  astonishing  energy  ?  The  Counsel  to  the 
Corporation  has  no  right  to  be  here.  Why  does  he  come  with  all 
this  expensive  array,  paid  from  the  city  treasury  ? 

I  speak  for  the  petitioner.  Why  is  he  here  to  speak  against 
me?  The  advocates  of  the  horse  railroads  have  no  arguments  and 
supply  no  opposition  except  from  him.  Has  it  come  to  this,  that 
I  am  to  make  proof  of  a  long-suspected  fact,  that  the  horse  rail- 
roads own  the  Corporation  Counsel  ?  I  take  no  delight  in  this 
line  of  argument.  The  Commissioners  may  apprehend  the  neces- 
sity that  drives  me  to  it.  I  say,  in  dismissing  the  subject,  the 
Corporation  Counsel  has  no  right  to  be  here.  He  is  not  an  admin- 
istrative officer.  He  can't  originate, prosecute,  appear  or  decide, 
of  his  own  motion.  He  should  be  cold  and  frigid,  immovable 
and  motionless,  indifferent  and  out  of  sight,  while  we  are  address- 
ing the  Common  Council  on  this  question  for  its  consent.  The 
Common  Council  will  tell  him  if  they  need  him.  He  has  no 
right  to  speak  until  it  asks  him  for  advice.  Administrative  con- 
sent lies  in  that  body.  He  is  not  to  busy  himself  about  the  matter 
until  they  do  ask  him.  He  has  no  right  to  forecast  their  con- 
clusion— to  influence  their  administrative  determination  about 
consents  we  seek.  If  the  Common  Council  should  con- 
sent to  our  scheme,  he  can't  oppose  it.    If  it  refuses  consent 


24 


lie  has  no  occasion  to  oppose  it,  for  without  that  consent  our 
scheme  is  dead.  The  Mayor  has  not  a  right  to  send  him  here ; 
the  Commissioner  of  Public  Works  can't  send  him  here ;  the 
Dock,  Park,  Police  or  Excise  Board  can't  send  him.  Why 
then  is  he  here  %  Dare  he  say  1  He  has  been  unmercifully 
prodded  on  the  question — Why  is  he  here  ?  Why  does  he 
attend  on  this  inquiry  with  costly  maps  and  an  expensive  array  of 
documents  for  the  benefit  of  horse  railways,  out  of  the  City 
Treasury.  I  know  why  I  am  here  ;  I  pay,  as  required  by  statute, 
for  all  the  cost  of  promoting  this  proceeding.  But  I  want  to 
know  if  there  is  any  warrant  granted  to  the  Corporation  Counsel 
for  making  the  tax-payers  of  the  city  pay  for  opposition  to  me  in 
this  inquiry — an  opposition  in  the  interest  of  horse  railroads.  No 
child  can  misunderstand  that  there  is  a  matter  here  to  be  ex- 
plained. Where  is  the  Sphynx  ?  It  is  the  hand  of  Whitney,  but 
his  Esau  has  the  voice  of  Jacob — Sharp. 

I  don't  think,  as  the  line  of  my  remarks  courses,  that  I  shall 
have  further  occasion  to  speak  of  Secretary  Whitney  or  the  Coun- 
sel to  the  Corporation,  but  I  may  ;  for  I  cannot  be  responsible  for 
the  restraint  of  my  indignation.  I  shall  endeavor  to  avoid  further 
allusion  to  them.  You  know  the  nature  of  the  ineffaceable  brand 
I  have  put  on  them.  The  whole  city  knows  it.  It  is  known  in 
Philadelphia.    I  speak  of  it  because  all  the  world  should  know  it. 

This  brings  me  to  the  presentation  of  the  proofs  I  have  laid 
before  you  as  to  the  merits  of  the  cable  system,  about  which,  under 
the  guiding  hand  of  the  office  of  the  Counsel  to  the  Corporation, 
Sterling,  Bird  sail,  Mackay  and  Crowley,  adverse  testimony  has 
been  borne.  I  believe  these  include  all  the  mechanical  engineers 
or  expert  pretenders  of  any  description  that  the  Corporation 
Counsel  or  Jacob  Sharp  or  any  other  objector  has  brought  before 
you  to  show  the  infeasibility  of  cable  roads. 

For  the  moment  I  ought  not  to  speak  of  the  testimony  on 
the  sanitary  question.  But,  lest  I  forget  it,  the  interesting  and 
instructive  testimony  of  Professor  Doremus,  by  which  we  know 
to  pounds  and  ounces  the  feeculent  voidings  of  horses  employed 
to  operate  the  horse  railroad  traffic  which  strew  our  streets  and 
breed  diseases  in  the  throat,  eye,  nose  and  ear,  and  offend  and. 
disease  every  organ  of  sense,  must  not  be  overlooked  by  the  Com- 


25 


missioners.  The  enormous  quantity  of  these  voiding3,  amounting 
to  hundreds  of  tons  daily,  and  tens  of  thousands  of  tons  yearly, 
cut  an  appalling  figure  in  our  statistics  of  vitality.  The  health 
of  our  citizens  is  exposed  to  such  jeopardy  from  them,  that  we 
are  left  to  conceive  from  the  powerful  presentation  of  Professor 
Doremus  and  the  other  medical  and  scientific  gentlemen  who 
support  his  testimony,  that  the  hand  of  the  destroying  angel 
gains  its  chief  vigor  from  this  source. 

Compared  with  this  presentation,  what  can  be  said  of  the 
ridiculous  mass  of  evidence  introduced  against  us  on  sanitary 
grounds  by  the  Counsel  to  the  Corporation.  His  testimony 
is  evidently  officered  by  a  prominent  physician  of  the  city, 
who,  we  have  been  told  by  counsel  making  the  arguments  to 
which  I  am  replying,  was  conspicuous  as  a  passenger  on  the 
early  morning  car  in  which  Jacob  Sharp  celebrated  the  opening 
of  his  railroad  on  Broadway.  This  early  morning  inauguration 
will  not  be  considered  to  be  without  significance  as  to  his  testi- 
mony. 

Perhaps  I  may  not  recur  again  to  this  sanitary  question 
in  the  swift  propulsions  that  crowd  on  my  argument.  And 
it  may  be  appropriate  here  for  me  to  make  all  the  criticisms 
that  I  care  to  make  upon  the  sanitary  evidence  produced  by  the 
opposition.  First,  I  say,  all  the  testimony  produced  on  that  ques- 
tion was  testimony  notoriously  gotten  up  by  Cyrus  Field  and 
Jay  G-ould  in  the  interest  of  preventing  excavations  to  under- 
ground their  telegraph  wires.  The  whole  city  knows  that  to  pre- 
vent undergrounding  those  wires  every  approachable  source  of 
medical  authority  to  prove  it  sanitarily  dangerous  was  invoked, 
and,  curiously  enough,  the  family  physician  of  Cyrus  Field  and 
Jacob  Sharp,  the  physician  who  rode  on  Mr.  Sharp's  inauguration 
train  down  Broadway,  Dr.  Loomis,  was  the  very  physician  who  has 
made  himself  conspicuous  in  supplying  testimony  to  show  the 
sanitary  calamities  that  would  happen  to  the  city,  provided  our 
cable  railroads  should  be  built ! 

I  have  read  that  testimony  carefully.  It  is  the  same  testimony, 
mutatis  mutandis,  given  against  undergrounding  the  telegraph 
wires.  I  leave  that  question  here,  and  my  opponents  may  rejoice 
over  all  the  inferences  they  may  derive  from  it.    I  see  in  it  only 


26 


Jay  Gould's  telegraph  testimony  revamped  to  suit  the  situation  im- 
pugning our  scheme.  Is  it  possible  that  the  Counsel  to  the  Cor- 
poration has  a  muddle  with  Jay  Gould?  This  conundrum  I  leave 
to  those  whom  it  may  concern.  I  have  business  enough  of  my  own 
outside  of  such  questions.  Children  should  not  play  with  fire.  I 
am  in  no  humor  to  have  the  Corporation  Counsel  here.  He 
ought  to  go  away.  I  know  a  thing  or  two  about  his  being  here 
that  is  not  to  his  advantage.  I  say,  get  out,  if  the  office  wants 
to  save  Mr.  Whitney. 

On  the  remaining  portion  of  our  lines,  my  friend,  Counsellor 
Scribner,  appears  and  exalts  his  horn.  Of  course,  Jacob  Sharp 
sent  him  here.  Of  course,  he  has  no  other  mission  or  motive 
than  to  do  and  say  things  which  Jacob  Sharp  wishes  him  to  do 
and  say.  My  friend  Trull,  speaks  for  Conover.  My  friend 
Lauterbach,  speaks  for  Henry  Hart,  of  the  Third  Avenue  Rail- 
road. These  three  advocates  of  horse  railroads  really  and  truly, 
as  your  Honorable  Commission  know,  represent  all  the  noticeable 
objections  to  the  petitioner's  scheme  of  cable  transit.  Whoever 
has  spoken  against  it  outside  of  them  has  had  his  stimulation  from 
them  or  the  interests  represented  by  them.  The  Commission  may 
therefore  consider  that  the  contention  before  them  is,  purely  and 
simply,  a  contention  between  the  horse-railroad  companies  and 
the  petitioner's  company  for  the  introduction  of  cable  roads. 

This  contention  admits  of  no  compromise.  The  cable  road 
advocates  comprehend  the  magnitude  of  the  struggle.  They 
knew  from  the  outset  that  they  had  to  fight,  tooth  and  nail,  the 
horse  railroads,  to  gain  a  footing.  The  horse  railroads  knew 
that  a  costly  battle  must  be  fought  to  defeat  the  cable  railway. 
In  the  Legislature  that  battle  was  fought  last  year,  and  the  Cable 
Railway  Company  lives  to  say  that  the  Legislature  has  confirmed 
its  right  so  far  as  the  State  can  confirm  it,  to  the  routes  granted 
it  by  Mayor  Edson's  Commissioners. 

Now,  where  do  we  stand  ?  The  routes  are  acknowledged  to 
be  necessary  routes  of  railroad  transit.  There  is  a  cognovit  on 
that  cjuestion.  The  Mayors  Rapid  Transit  Commission  was 
justified  in  so  declaring,  and  you  will  be  justified  in  indorsing 
their  declaration.  They  are  necessary,  not  merely  on  the  northern 
end  of  Manhattan  Island,  but  necessary  at  the  ferries  south  of 


27 


Chambers  street  and  across  the  lower  end  of  the  island  ;  necessary, 
in  the  judgment  of  the  opposition,  at  that  part,  more  than  at  the 
upper  part,  as  is  evidenced  by  the  fact  that,  as  I  have  just 
shown,  they  have  tiled  on  Cortlandt,  Liberty,  William  and  Wall 
street  for  horse  railroadi.  So  I  beg  the  Commission  to  dismiss 
the  idea,  that  it  is  seriously  contended  that  there  are  any 
objectors  to  railroads  in  that  part  of  the  city  upon  the  ground 
that  they  are  not  needed,  or  that  they  are  impracticable,  for  we 
are  all  agreed,  petitioner  and  objectors,  that  they  are  needed,  and 
we  are  all  agreed  that  they  are  practicable. 

Xow,  what  is  the  next  question  ?  The  next  question  is  as  to 
whether  there  shall  be  a  cable  road  or  a  horse  railroad  on  these 
down-town  streets.  We  say  they  should  be  cable  railroads.  The 
horse  railroad  objectors  say  it  shall  be  horse  railroads ;  their 
articles  are  filed  for  horse  railroads,  and  I  hand  those  articles  to 
the  Commission. 

Mr.  Collier — I  object  to  counsel  arguing  here  on  matters 
not  in  evidence  before  the  Commission. 

Mr.  Shaw — I  claim  the  right  to  draw  my  proofs  from  any 
official  quarter.  If  I  choose  to  consult  the  Secretary  of  State's 
office  and  lay  before  this  Commissien  documents,  whether 
formally  placed  in  evidence  or  not,  I  have  a  right  to  do  so. 
You  cannot  deny  me  access  to  the  archives  of  State,  and  if  you 
choose  to  put  into  those  archives  matter  that  gives  your  case 
away,  that  is  my  fortune  and  your  infirmity.  Don't  imagine  for 
a  moment  that  you  can  make  a  lying  opposition  here  and  at  the 
same  time  press  for  an  advantage  elsewhere.  I  intend  to  let  these 
Commissioners  see  your  stultification.  You  may  not  enjoy  it,  but 
the  Commissioners  cannot  ignore  it.  We  closed  our  proof  some 
weeks  ago.  Since  then,  by  filing  these  articles,  you  have  given 
the  lie  to  all  the  opposition  you  made  in  those  proofs.  Take  your 
little  bed  and  lie  down  in  it.  Now  the  question  arises  shall  we 
build  our  cable  roads  or  shall  the  opposition  build  their  horse  roads. 
That  is  all  there  is  of  this  contention.  If  we  build  them,  we  build 
them  as  a  part  of  a  system,  and  they  will  be  cable  roads,  and  passen- 
ger transportation  on  them  will  practically  be  free,  because  we  do 
not  charge  fare  on  transfers  across  them.  If  the  opposition  build 
them,  they  will  be  several  distinct  horse  railroads,  and  there  will 


28 


be  a  separate  five-cent  fare  exacted  from  passengers  on  each  of 
those  roads. 

At  this  point  are  raised  questions  of  law  ;  and  it  is  with  these 
questions  that  I  am  now  going  to  principally  deal.  When 
I  interrupted  in  his  argument,  my  friend,  Mr.  Trull,  to 
observe  that  the  elevated  railway  litigations  had  furnished 
a  precedent,  he  did  not  say,  "  Precedent  be  hanged!"  but  he  did 
say  he  did  not  care  for  precedent ;  he  said  he  relied  upon  the 
statute  and  the  law.  Now  we  do  care  for  precedent,  and  that  is 
the  only  way  we  know  the  meaning  of  the  statute ;  that  is,  the 
only  way  we  understand  the  law,  is  by  the  special  interpretation 
of  it  by  the  courts  of  last  resort. 

Now,  what  have  the  courts  of  last  resort  done  under  this  Ele- 
vated Kailroad  A  ct  or  Rapid  Transit  Act  ?  They  have  passed  upon 
all  the  legal  questions  that  the  objectors  here  have  raised.  Those 
objections  have  been  through  the  courts  over  and  over  again. 
They  have  been  presented  to  the  Court  by  these  same  objectors 
with  all  their  force,  not  one  point  excepted,  though  my  friend 
Mr.  Trull,  said  there  were  some  points  that  he  presented  yester- 
day that  had  not  been  presented  to  the  General  Term,  but  he 
failed  to  point  to  one.  Yet  the  very  truth  is,  every  point  was 
presented,  and  that  Court  has  remitted  that  old  question  back 
to  you  to  make  a  report  upon,  whether  or  not  public  interest, 
public  convenience  and  public  accommodation  would  be  pro- 
moted if  our  cable  railroads  should  be  built. 

And  that  is  your  question.  You  are  to  say  whether,  as  a 
physical  and  mechanical  fact,  cable  roads  are  practicable,  preferable 
and  desirable  as  a  means  of  city  transit  upon  the  routes  proposed  to 
be  built  upon  by  the  petitioner.  You  are  to  say  whether  public 
policy  and  convenience  demand  these  cable  roads.  You  are  to 
say  whether  the  public  services  contemplated  by  their  construc- 
tion are  desirable.  You  are  not  to  bother  your  brains  with  legal 
finesse  and  split  hairs  between  the  northwest  and  the  southwest 
side  respecting  the  construction  of  statutes.  You  are  not  here  to 
draw  fine  legal  lines  as  to  our  corporate  powers,  our  corporate 
capacity,  our  corporate  entity ;  nor  are  you  to  do  or  deal  with 
finespun  theories  about  the  law  of  this  case ;  but  you  are 
to  do  and  deal  with  the  question  as  to  the  utility,  necessity  and 


• 


29 


desirability  of  the  cable  roads  the  petitioner  proposes  to  build. 
That  is  what  the  General  Term,  whose  commission  you  hold  to 
investigate  this  matter,  expects  from  you.  The  General  Term  of 
the  Supreme  Court  will  take  care  of  the  law  questions  and  you 
are  to  take  care  of  the  physical,  mechanical,  economic  and  utili- 
tarian questions  involved  in  this  inquiry. 

Chairman  Pelton — You  need  not  argue  this  proposition  any 
further.  We  conceive  it  to  be  our  duty  to  pass  simply  upon  the 
desirability  of  the  system.  The  law  questions  may  be  raised  at 
the  General  Term.  That  is  the  Commissioners'  understanding, 
derived  from  the  intimation  of  the  recent  opinion  of  the  General 
Term  of  the  Supreme  Court  in  this  matter. 

Mr.  Shaw — This  being  an  economical  question,  a  practical 
question,  in  the  economical  affairs  of  this  city,  and  not  a  question  of 
law,  you  may  well  close  your  eyes  to  all  law  books  and  all  suggestions 
of  difficulties  in  the  law  part  of  this  case,  and  tell  us  whether  or 
not  the  public  convenience  would  be  subserved  if  those  roads 
were  built.  That  seems  to  me  to  be  your  duty.  But  I  can  see  that 
possibly,  in  making  up  your  mind,  you  may  try  .to  determine  whether 
or  not  you  are  doing  a  vain  thing,  and  thus  indirectly  and  most 
potently  consider  the  law  questions  that  have  been  raised  by  these 
objectors ;  you  migrht  think  these  roads  ought  to  be  built,  every 
one  of  them,  and  yet  you  might  be  impressed  with  the  argu- 
ments that  have  been  uttered  here,  and  the  objections  that  have 
been  put  forth,  that  there  was  some  defect  in  the  charter  of  our 
company,  some  difficulty,  something  by  which,  even  if  you  desire 
that  this  company  should  accomplish  the  purpose  of  its  being, 
this  company  never  could  accomplish  that  purpose  for  the  want 
of  legal  capacity,  power,  legitimacy  and  authority. 

JSTow,  Commissioners  charged  as  you  are  with  the  gravest 
duties  to  the  public  on  a  question  of  gravest  public  concern,  who 
ought  to  view  the  outcome  as  well  as  the  beginning  of  your 
labors,  who  should  work  upon  the  old  Baconian  philosophy, 
"The  fruit  is  the  result  for  the  public,"  you  should  know  precisely 
whether  or  not  this  corporation  is  competent  to  take  what  it  petitions 
for,  and  execute  lawfully  what  it  asks  to  be  intrusted  to  execute. 
Your  functions  as  Commissioners  charged  with  this  important 
matter  of  public  services  will  end  in  dust  and  ashes  unless  our 


30 


corporation  has  legal  capacity.  Yon  are  all  lawyers.  You  cannot 
and  you  will  not  shut  your  eyes  to  this  fact.  If  the  Divine  mind 
had  exhausted  itself  in  perfecting  the  physical  conditions  and  felici- 
ties of  our  system  and  we  were  without  legal  capacity,  your  work 
would  be  vain,  fruitless.  You  may  well,  therefore,  inquire,  as  our 
opponents  demand  that  you  shall  do,  whether  when  the  objections 
that  are  urged  here  shall  reach  the  General  Term,  there  will  be 
found  legal  embarrassment  or  difficulty  in  confirming  your  report, 
if  you  make  it  in  favor  of  the  petitioner.  I  think  it  fair,  considering 
the  great  need  and  pressure  for  these  public  facilities  and  services 
we  propose  to  offer,  that  you  should  look  into  the  probabilities  of 
that  matter.  I  know  that  if  you  were  not  fixed  in  your  opinion,  or 
were  doubtful,  or  hesitating,  or  halting  as  to  whether  or  not  there 
were  defects  in  our  charter,  you  would  not  take  this  deep  interest 
in  this  inquiry,  because  you  would  not  know  but  that  it  might 
be  abortive  and  unavailing.  And  it  is  for  this  reason  that  I 
argue  questions  of  law  with  you :  not  because  I  think  you  have 
the  right  to  listen  to  the  suggestion  of  opposing  counsel  criticising 
the  determination  of  the  General  Term  in  sending  this  matter  for 
you  to  look  at  as  a  physical  fact  with  your  eyes,  and  not  to 
decide  by  captious,  legal  quibbles  suggested  as  matter  of  law  by 
objectors'  counsel. 

IsTow  in  that  view,  I  wish  to  say,  that  the  Cable  Railway  Com- 
pany is  organized  under  chapter  606  of  the  Laws  of  1875,  known 
as  the  Rapid  Transit  Act,  although  the  words  "rapid  transit"  do 
not  occur  in  the  act,  nor  is  there  any  suggestion  of  speed  and 
dispatch  in  the  whole  act.  Under  that  act  the  elevated  railroads 
of  our  city  were  built,  and  all  the  questions  that  have  been  raised 
here  were  raised  before  the  Courts  that  decided  upon  the 
constitutionality  of  that  act,  and  upon  the  regularity  and  legal- 
ity of  the  work  of  the  Commissioners  who  wrought  under  it.  And 
it  is  upon  that  precedent  that  we  rely  to  show  you  incontrovertibly 
that  in  no  respect,  in  the  slightest,  technically  or  substantially,  is 
there  one  particle  of  irregularity  or  fault  in  our  articles  of  associa- 
tion. The  Court  of  Appeals  having  passed  upon  the  law,  the  method 
of  procedure  being  known  to  us  all,  the  precedents  were  numer- 
ous enough  to  enable  counsel  of  ordinary  ability  to  know  pre- 
cisely what  to  do — or  a  commission  of  ordinary  ability  to  deter- 


31 


mine  precisely  what  to  do  about  laying  out  routes  under  this  Rapid 
Transit  Act.  The  Cable  Company's  Commission  was  the  seventh 
Commission  appointed  under  that  act.  The  bar  were  familiar 
with  all  the  proceedings  necessary  to  be  taken.  The  path  was 
well  trodden ;  all  the  questions  had  been  well  considered. 

It  was  under  these  circumstances  that  the  Rapid  Transit  Com- 
mission which  gave  the  Cable  Company  its  charter  was  created. 
I  have  here  a  book  of  the  proceedings  of  the  Commissioners  that 
gave  us  the  elevated  railways  in  1875 ;  I  will  call  it  "  Elevated 
Railways."    I  have  here,  also,  a  book  of  the  proceedings  of  the 
Commissioners  that  organized  the  Cable  Company ;  I  will  call  it 
"  Cable  Railways."    Look  at  these  two  books,  wliich  I  hold  in 
my  right  hand  and  in  my  left.    They  are  of  about  equal  size. 
Weigh  them  in  the  balance  and  you  will  find  that  their  avoir- 
dupois is  about  the  same.    Don't  mistake  me.  I  want  these  two 
books,  like  Siamese  twins,  to  walk  hand  in  hand,  flesh  in  flesh, 
before  you.  Look  at  them.  As  to  their  contents,  I  can  truthfully 
say  that  all  the  clauses  in  one  and  all  the  clauses  in  the  other, 
upon  which  objections  have  been  made,  as  to  the  legality  and 
propriety  of  the  proceedings  that  resulted  in  the  elevated  railways 
and  in  the  cable  railways  are  strictly  similar,  except  in  the  par- 
ticular that  the  Cable  Company  was  not  bound  to  build  its  proposed 
roads  until  it  had  obtained  legal  authority  to  do  so  after  the  exer- 
cise of  due  diligence.    That  exception,  and  that  alone,  is  the 
only  departure  from  the  precedent  afforded  us  by  the  Rapid 
Transit  Commission  that  gave  us  the  elevated  railroads.    I  pro- 
pose in  the  progress  of  my  argument  to  deal  with  that  exception. 
I  am  prepared  to  defend  that  departure,  on  the  authority  of  ele- 
mentary writers  and  the  precedents  the  jurists  of  England  and 
this  country  have  furnished.    If  you  will  take  the  proceed- 
ings of  the  Elevated  Railway  Commissioners  and  the  proceedings 
of  the  Cable  Railway  Commissioners,  you  will  discover  from 
comparison  with  what  slavish  servility,  if  I  may  use  the  expres- 
sion, the  Commissioners  of  the  Cable  Company  followed  the 
proceedings  of  the    Commissioners  of  the  Elevated  Railway 
Company.    Not  in  the  slightest  particular,  in  no  place,  nowhere, 
was  there  any  departure  at  all  from  those  proceedings,  except  in 
the  particular  I  have  stated.    And  the  opinions  of  counsel 


32 


recorded  in  the  proceedings  of  the  Commissioners  that 
gave  ns  the  elevated  railways  were  the  opinions  that  the 
Cable  Railway  Commissioners  followed  in  their  proceed- 
ings. All  the  questions  of  location,  and  prohibited  streets, 
and  provisos,  and  stations,  and  plans  and  structures 
on  the  surface  so  much  dwelt  upon  by  the  seventeen  lawyers  that 
have  addressed  you  on  behalf  of  the  objectors,  were  raised  in  the 
original  Elevated  Railway  Commission,  as  they  are  here,  and  have 
been  overruled  by  every  court  of  competent  jurisdiction  in  the 
land,  and  have  been  ignored  as  they  ought  to  be  ignored  in  the 
proceedings  of  the  Cable  Commission. 

And  yet,  tnat  being  the  case,  these  objectors  come  here  with 
what  ?  Well,  we  with  slavish  servility  followed  the  precedent  of 
the  Elevated  Railway  Commission,  while  they  weakly  and  servilely 
followed  the  objectors  to  the  work  of  the  Elevated  Railway  Com- 
mission. They  have  done  nothing  but  retail  into  our  ears  and  into 
the  ears  of  the  public,  and  through  the  press,  the  very  objections 
that  were  made  and  answered  in  the  Elevated  Railway  cases.  I 
can  give  you  five  pages  of  their  objections,  copied  verbatim  et 
literatim  et  punctuatim  from  Mr.  Parsons'  brief.  The  objection 
they  dwelt  upon,  the  only  new  one,  is  the  objection  made  by  Mr. 
Wickes  about  the  Supervisors. 

All  this  matter  has  been  gone  over,  and  now  why  have  they 
done  it  ?  It  is  to  plant  in  your  minds  the  idea  that  if  you  give 
these  routes  to  my  petitioner  the  courts  will  upset  your  deter- 
mination. That  is  one  idea  :  thev  think  to  deter  vou  from  look- 
ing  into  the  solemnities  of  the  great  work  before  you  by  saying 
it  will  peter  out  in  some  sort  of  way,  and  fall  by  the  force  of 
these  objections.  They  have  another  motive ;  they  think  to 
scare  our  syndicate  and  our  promotors  from  furnishing  the 
necessary  capital  to  carry  out  our  enterprise,  and  combat,  as 
they  sa}7,  our  nefarious  schemes — and  that  is  another  pur- 
pose. The  busy  avenues  of  the  press  are  kept  at  work,  and  the 
entire  claque  of  fifteen  horse  railroads  that  are,  and  hope  to  be,  are 
kept  at  work  circulating  through  every  possible  means  in  the 
city,  squatting  in  every  alley,  whispering  in  every  avenue  of 
approach,  the  terrible  suggested  difficulties  of  our  legal  situation, 
and  that  the  Cable  Company  will  never  come  to  anything  on 


33 


account  of  legal  corporate  incapacity  or  something  of  that  sort. 
Some  of  our  opponents  believe  it.  They  went  to  the  General 
Term  of  the  Supreme  Court  the  other  day  about  it,  and  immedi- 
ately this  Commission  had  to  stop  its  session,  and  five  weeks  were 
spent  to  get  the  solemn  judgment  of  that  Court  as  to  what  there 
was  in  those  objections.  The  Court  has  sent  them  back  here 
and  directed  you  to  proceed.  The  Court  declared  its  intention  to 
take  care  of  those  objections.  It  had  taken  care  of  them  when 
it  appointed  you,  for  all  the  questions  had  been  discussed  before 
the  Court  in  solemn  argument  by  Mr.  Evarts,  Mr.  Sewell  and 
myself,  and  they  knew  every  one  of  those  objections  when  this 
Commission  was  created,  and  yet  they  created  you. 

Would  the  Court  do  a  vain  thing  ?  Are  you  at  liberty  to 
suppose  that  the  Court,  with  full  knowledge  of  all  these  objections, 
would  grant  you  the  commission  it  has  given,  to  sit  and  to  hear 
and  determine  this  momentous  question  of  intramural  transit,  if  it 
had  doubt  of  its  ability  to  constitute  you  a  Commission  to  pass 
upon  the  question  and  inquiry  it  has  confided  to  your  judgment  \ 

Of  course  not.  Now  I  have  addressed  myself  particularly  to 
this  consideration,  not  because  I  care  whether  you  propose  to  con- 
sider the  law  questions  or  not,  but  because  I  do  not  intend  

Mr.  Wagstaff — I  am  utterly  opposed  to  cable,  street  or  sur- 
face roads  running  in  Wall  street  affecting  my  client's  interest, 
and  I  am  not  interested  in  any  way  in  any  corporation. 

Mr.  Shaw — I  have  stated  that  you  were  an  officer  of  Mr. 
Conover's  Forty-second  Street  and  Manhattanville  horse  railroad. 
I  do  not  withdraw  that  statement.  You  may  not  be  vice-president 
now,  as  you  once  were,  of  that  company,  but  you  are,  to  day,  an 
officer  of  that  corporation.  The  friend  at  my  side  tells  me  that 
you  are  secretary.  I  challenge  you  to  deny  that  you  are  secretary 
or  treasurer  of  that  corporation.  I  observe  no  denial  comes,  and 
it  will  not  come,  for  the  fact  is  a  fact. 

Now,  Gentlemen  of  the  Commission,  while,  as  I  said,  I  might 
not  care  what  may  be  your  views  about  the  law  of  the  case,  I 
want  to  remove  from  the  mind  of  the  Commission  any  lingering 
doubt  they  may  have  that  their  work  will  prove  abortive  by 
reason  of  any  supposed  defect  in  the  Articles  of  Association  or 
of  any  defect  in  proceedings  of  the  Rapid  Transit  Commission. 
3 


34 


JSTow  I  propose  to  take  up  these  criticisms  upon  the  proceed- 
ings of  the  Mayor's  Cable  Railway  Commissioners  seriatim, 

Mr.  Hand  charged,  that  with  undue  and  indecent  haste  that 
Commission  had  passed  our  routes.  I  answer:  Let  any  man 
on  earth  dispute  me  if  he  dare  !  The  Commissioners  were  sworn 
into  office  on  the  1st  day  of  December,  1883,  they  took  thirteen 
days  to  organize ;  on  the  14th  day  of  December,  after  wide  adver- 
tisement in  the  newspapers,  they  met  in  the  largest  and  most 
commodious  rooms  in  the  Fifth  Avenue  Hotel,  and  I  think  per- 
haps five  hundred  millions  of  property  were  represented  in  those 
parlors.  The  Commission  was  addressed  by  William  P.  Shinn, 
Gen.  Yiele,  the  Hon.  ¥m.  Dorsheimer,  Robert  Sewell,  Simeon 
E.  Church,  and  several  others.  There  is  a  report  of  their  speeches 
extant ;  I  have  handed  to  these  Commissioners  a  printed  copy  of 
those  speeches.  I  wish  them  to  be  regarded  as  a  part  of  my  argu- 
ment. These  speeches  were  utterances  of  men  of  prominence,  not 
unacquainted  with  the  whole  question  of  our  intramural  transit. 
You  will  find  Gov.  Dorsheimer' s  speech  very  instructive.  After 
the  speeches  were  made,  the  Chairman  made  this  very  sensible 
observation :  "  The  question  of  necessity  may  perhaps  to  some 
extent  at  least  be  governed  by  the  locality  in  which  it  is  proposed 
that  additional  facilities  should  be  furnished."  Gen.  Yiele,  on 
request,  then  stated  that  at  some  future  time  he  would  furnish 
additional  information  as  to  the  routes  upon  which  cable  roads 
ought  to  be  constructed,  whenever  the  Commissioners  should  be 
ready  to  hear  his  views  on  the  subject.  "  We  shall  be  glad  to  hear 
them,"  said  the  Commissioners.  Gen.  Yiele  said  he  would  be 
ready  at  any  time.  The  Chairman  of  the  Commission  then  said : 
"  We  shall  be  ready  to  hear  you,  but  the  question  of  necessity 
will  be  governed  by  locality." 

The  National  Cable  Railway  Company  then  presented  their 
plans  and  invited  the  Commissioners  to  go  to  Chicago  to 
examine  the  Cable  Road  in  operation  there.  The  invitation 
embraced  fifty  citizens,  public  men,  to  go  and  make  an  exam, 
ination  of  that  system,  and  the  trip  was  made,  and  they  had 
an  investigation.  Within  sixty  days  after  organization  they  laid 
out  the  system  now  before  you.  It  may  be  called  Gen.  Yiele's 
system.    Within  ninety  days,  and  not  an  hour  before  the  mid- 


35 


night  clock  struck  the  hand  of  those  ninety  days,  did  they  furnish 
their  plans.  Then,  within  one  hundred  and  twenty  days  their 
Articles  of  Association,  as  required  by  statute,  were  ready,  just 
at  the  expiration  of  that  one  hundred  and  twenty  days ;  not  a 
day  sooner,  not  a  day  later.  Then  arose  the  statutory  period 
within  which  advertisements  for  subscriptions  should  be  made, 
and  the  last  day  named  in  the  Statute  was  the  day  upon  which 
the  subscription  books  were  opened,  and  opened  in  a  conspicuous 
bank,  in  a  public  thoroughfare,  at  the  corner  of  Wall  and 
Broad  streets,  the  Mills  Building.  There,  following  precisely  the 
form — our  minutes  read  alike — our  subscriptions  were  taken  as 
they  were  taken  in  the  Elevated  railway  proceeding.  We 
followed  the  method  of  organization  adopted  by  the  Ele- 
vated Railway  corporators,  which  required  a  ratification 
of  ten  days,  and  the  whole  ten  days  were  occupied  in 
that  one  thing,  and  then  they  were  organized.  Then  came  the 
final  day  to  file  the  affidavit  that  these  things  had  been 
done,  which  could  be  in  five  days,  and  on  the  fifth  day,  which 
was  on  the  21st  day  of  April,  1884,  that  thing  was  done> 
and  on  the  22d  day  of  April,  and  not  a  day  sooner,  and  not  a  day 
later  than  the  statute  authorized,  the  articles  were  filed  in  the 
office  of  the  Secretary  of  State,  and  in  the  office  of  the  clerk  of 
this  county,  and  thereupon,  by  statute,  the  Cable  Railway  Com- 
pany became  a  corporation. 

Who  shall  say  there  was  indecent  haste  ?  Where  is  this  slan- 
derer that  dares  say  this  thing  ?  This  is  the  sort  of  thing  that  has 
been  said ;  this  is  the  sort  of  falsehood  that  has  been  uttered 
against  our  corporation  from  the  very  beginning.  We  attempted 
to  secure  franchises  for  the  cable  system  with  indecent  haste ! 
It  began  during  the  sessions  of  the  Rapid  Transit  Commission. 
These  horse  railroad  people  have  furnished  the  views  for  the 
objectors,  but  there  is  the  culprit  (pointing  to  Assistant  Corpora- 
tion Counsel  Wickes),  who  from  the  City  Treasury  has  fur- 
nished all  the  sinews  for  the  purposes  of  the  objectors  before  this 
Commission. 

Now  let  us  see  who  can  attack  us,  who  has  a  right  to  speak 
upon  this  subject  anyway,  whether  we  are  a  corporation  or  whether 
we  are  not.    In  the  elevated  railway  cases  objectors  raised  the 


36 


same  objections  that  we  are  confronting  here.  They  said  there 
is  a  spot  in  the  heel  of  Achilles  where  the  fatal  poison  that 
destroys  you  may  be  injected,  and  we  plant  our  barb  there.  This 
same  question  arose  in  the  elevated  railroad  case.  Judge  Earl 
disposes  of  it  in  his  opinion,  which -has  been  so  frequently  re- 
ferred to  by  the  seventeen  horse-railroad  lawyers  who  have 
appeared* here  before  you  against  me.  The  petitioner  has  com- 
plied with  every  condition  required  by  the  statute.  All  the 
kings'  horses  and  all  the  kings  men  can't  change  the  determina- 
tion made  everlastingly  and  finally  by  the  Court  of  Appeals  as 
fixed  and  determined  by  the  opinion  of  Judge  Earl. 

So  that  we  may  say  that  there  is  a  fixed,  irreversible,  unquali- 
fied decision  upon  this  question,  and  these  objectors  will  not  be 
allowed  to  speak  on  this  question  at  General  Term  if  your  report 
gets  there,  nor  in  the  Court  of  Appeals.  These  objectors  to 
our  corporate  capacity  are  busy-bodies.  Whom  can  they  speak 
to  \  Where  is  the  tribunal  to  give  them  audience  ?  You  can't. 
This  Commission  can't.  The  General  Term  of  the  Supreme 
-Court  from  whom  yon  derive  your  existence  can't.  The  Court  of 
Appeals  can't  hear  their  contention  without  absolute  stultification. 
The  utter  feebleness  of  their  power  of  contention  is  disclosed  in 
the  opinion  of  Judge  Earl,  and  it  is  the  childishness  of  foolish- 
ness to  contend  against  me  on  this  question  of  our  corporate 
capacity.  Where  can  they  go  with  their  story,  if  they  have  one  ? 
There  are  but  two  places,  one  is  the  Legislature ;  the  other  is  the 
Attorney-General.  To  those  two  places  alone  can  they  pour  out 
their  eloquent  and  industrious  defamations  against  the  corporate 
capacity  of  the  petitioner.  And  when  they  get  these  as  their  con- 
duit, then  we  may  be  obliged  to  hear  their  feeble  piping,  but  not 
till  then. 

Xow,  who  incorporated  us  ?  My  friend,  Mr.  Trull,  told  you 
yesterday  that  he  would  make  a  startling  proposition.  This  propo- 
sition was  one  of  annihilation,  said  he,  arising  from  the  fact  that 
the  men  who  made  us,  the  Commissioners,  did  not  proceed  rightly. 
Now,  my  proposition  is  that  we  were  made  by  the  Legislature. 
Such  was  the  power  of  the  Cable  Rapid  Transit  Commis- 
sioners, that  when  they  gave  us  those  articles  of  incorpo- 
ration, they  were  given   to  us  as  though  they  had  then  and 


37 


there  been  the  Act  of  the  Legislature  itself.  I  would  a» 
lief  have  the  Company's  charter  in  its  present  form,  as  if 
I  had  it  from  the  Legislature,  endowed  with  all  competence  to 
give  it,  and  found  archived  in  the  office  of  the  Secretary  of 
State.  Now  let  us  see  if  that  is  so.  In  this  much  quoted 
decision  of  Judge  Earl,  the  objection  was  raised  that  these  Rapid 
Transit  Commissioners  were  accredited  with  legislative  powers 
which,  under  the  Constitution  could  not  be  deputed ;  to  that  objec- 
tion,  the  Court  of  Appeals  in  this  opinion  of  the  Court,  made  this 
answer :  "  Corporations  organized  under  the  act  derive  their 
franchises  from  the  Legislature,  and  in  no  proper  sense  from  the 
Commissioners."  I  think  that  settles  our  statics  as  a  corporation 
as  emanating  directly  from  the  will  of  the  people  as  represented 
in  Senate  and  Assembly.  Now  against  this  majestic  corporation, 
clothed  with  all  the  grand  and  beneficent  powers  we  claim  for  it, 
what  is  urged?  Why,  they  urge  that  our  corporation  can't 
undertake,  as  a  legal  personality,  the  construction  of  the  railways 
we  seek  for,  for  the  reason  that  there  are  statutory  objections  in 
the  way. 

This  decision  is  to  be  found  in  the  TOth  New  York 
Reports.  It  covers  and  conveys  the  deliberate  resolution  of  the 
last  Court  on  earth  that  can  pass  on  this  question.  It  is  a  great 
and  overwhelming  and  indisputable  thing. 

Chairman  Pelton — Would  you  state  where  the  passage  is  to 
which  you  refer,  in  the  opinion  of  Justice  Earl? 

Mr.  Shaw — Yes,  sir ;  readily.  I  have  it  here.  I  read  it  to 
you.    Take  the  book.    In  70th  N.  Y.,  p.  338,  you  will  find  this : 

u  But  a  cause  of  forfeiture  cannot  be  taken  advantage  of  or 
"  enforced  against  a  corporation  collaterally  or  incidentally,  or  in 
"  any  other  mode  than  by  a  direct  proceeding  for  that  purpose 
"  against  the  corporation  ;  and  the  government  creating  the  cor- 
"  poration  can  alone  institute  the  proceeding  ;  and  it  can  waive 
"  a  forfeiture,  and  this  it  can  do  expressly  or  by  legislative  acts 
"  recognizing  the  continued  existence  of  the  corporation." 

A  corporation,  which  is  an  artificial  person,  cannot  vocally  say 
"Jam."  A  living,  actual,  natural  person  can  say,  "I  am — I  know 
I  exist ; "  and  all  the  philosophy  of  all  the  ages  can't  dispute  that. 


38 


But  lawyers  may  come  into  court  and  get  the  judgment  of  judges 
about  the  existence  of  a  corporation.  In  this  decision  of  the  last 
court  that  can  pronounce  on  such  a  question,  our  corporate  entity 
is  declared.  It  is  almost  a  metaphysical  question  whether  a 
fellow  finds  whether  he  is  himself  or  another  fellow,  whether  he 
exists  or  whether  he  don't  exist.  This  question  of  our  corporate 
capacity  is  one  of  that  sort  of  questions  presented  here. 

Well,  we  say,  the  Attorney  General  or  the  Legislature  are 
alone  accredited  with  the  right  to  make  an  inquiry  of  this  sort. 
Our  seventeen  horse  railroad  objectors  may  conclude  their  chase 
right  here.  The  decision  of  the  Court  of  Appeals  ends  their 
objection.  Where  are  we  then?  We  are  a  valid  corporation) 
sure.  ~No  power  of  defamation,  no  force  of  calumny  can  dispute 
this. 

Now,  what  are  these  statutory  objections  urged  against  us? 
Let  us  consider  every  one  of  them,  one  by  one.  This  is  not 
the  first  forum  in  which  they  have  been  stated.  They  have 
been  stated  at  the  Special  Term  of  the  Supreme  Court.  They 
have  been  four  times  stated  at  the  General  Term  of  the  Supreme 
Court,  That  same  General  Term  from  which  you  derive  your 
authority  to  sit  as  Commissioners  on  this  inquiry.  And  from 
none  of  these  Courts,  to  be  Websterian,  I  may  say,  have  they 
received  the  "  cold  respect  of  a  passing  glance." 

Well,  now,  let  us  look  at  the  objections.  The  present  move- 
ment of  my  argument  relates  to  this.  Let  us  have  all  the 
arrows  of  their  quiver  of  objections. 

Well,  my  friend  Trull,  sticks  his  first  straw,  which  he  thinks 
is  an  arrow,  but  which  is  no  arrow  at  all,  on  this  :  I  read  from 
Section  Four  of  the  Rapid  Transit  Act.  This  Section  reads  that 
the  Commissioners  shall  "  fix  and  determine  the  route  or  routes 
"  for  such  steam  railway  or  railways,  and  the  said  Commissioners 
"  shall  have  the  exclusive  power  to  locate  the  route  or  routes  of 
"  such  railway  or  railways,  over,  under,  through  or  across  the 
"  streets,  avenues,  places  or  lands  in  such  county." 

My  friend  Trull,  and  all  his  sixteen  horse-railroad  coadjutors, 
stand  behind  this  straw  to  exhaust  the  power  of  his  great  catapult, 
and  give  effect  to  it.  Well,  it's  only  a  straw  after  all.  Let  us 
see  what  it  is.    My  friend,  Mr.  Trull,  sticks  his  first  straw  into 


39 


our  heel  with  the  word  "  location,"  which  he  says  means  whether 
our  road  is  to  be  located  above  the  street,  or  located  beneath 

the  street.     ]^ow  he  says  the  word  "location*'  refers  to  the 

t/ 

altitude  or  depression  of  the  structure,  its  relative  position  with 
reference  to  the  surface  of  the  street,  while  "  route "  means  the 
line  proposed,  and  "  location "  means  the  places  on  that  line  in 
which  the  route  is  to  be  built.  The  collocation  of  the  words  in 
the  statute  is  so  clear,  and  the  use  of  the  words — thev  are 
phrases  so  familiar  to  the  ear  that  I  do  not  wonder  that  the 
Chairman  of  the  Committee  said,  as  Mr.  Trull  was  speaking, 
"  It  may  be  that  you  are  right,  Mr.  Trull,  but  hitherto  I  had 
not  thought  so." 

Xow,  let  us  see  what  the  Mayor's  Elevated  Railroad  Com- 
missioners  thought  on  that  subject.  The  question  came  up  on 
the  opinions  of  Mr.  Lowrey,  Mr.  Stephen  P.  Xash,  and  Mr. 
Harris,  and  that  most  careful  and  astute  lawyer,  George  TV.  Van 
Sicleu,  and  in  those  opinions  occurs  this  expression :  "  I  am 
of  opinion  that  the  phrases  'fixed  or  determined  the  route  or 
routes  f  and  '  locating  the  route  or  routes'  are  one  and  the  same 
thing ;  that  the  Legislature  first  say  that  they  have  sixty  days 
after  the  organization  to  fix  and  determine  the  route  or  routes, 
and  then,  that  no  possible  question  may  arise,  the  Legislature 
simply  added  that  you  shall  have  the  exclusive  power  to  locate 
the  route  or  routes." 

It  is  on  that  exclusive  power  that  my  question  with  my  friend 
Trull  occurs.  I  hold  his  railroad  corporation's  bond,  I  mean  the 
Forty-second  Street  and  Manhattanville  Company's  bond,  that 
they  will  get  out  of  Forty-second  street,  when  our  right  accrues, 
by  legal  process,  for  they  got  there  when  the  exclusive  right  to 
apply  for  and  obtain  it  was  ours,  and  we  brought  an  injunction 
suit  to  restrain  them,  based  upon  that  right ;  but  proceedings 
were  had  and  amicable  arrangements  made  by  which  we  took 
his  corporation's  bond  that  will  give  us  damage  when  the  king 
gets  ready  to  ask  for  his  own. 

Mr.  Trull — I  beg  to  inform  the  Commission  that  in  those 
litigations  the  Court  decided  you  had  no  right  there. 

Mr.  Shaw — What  Court  do  vou  refer  to  ? 


40 


s 


Mr.  Trull — The  Court  of  Common  Pleas,  at  Special  Term. 
Judge  Joseph  F.  Daly  decided  substantially  that  your  corpora- 
tion was  invalid,  and  afterwards,  upon  solemn  argument  the  Gen- 
eral Term  of  that  Court  sustained  his  decision. 

Mr.  Shaw — Yes ;  I  know  it.  Judge  Joseph  F.  Daly,  of  that 
Court,  did  give  an  opinion  quite  decidedly  to  that  effect,  and 
the  General  Term  of  that  Court  did  indorse  it.  What  else  could 
I  expect  from  a  notoriously  horse-railroad  Court,  with  John  M. 
Scribner,  Nelson  J.  Waterbury,  and  my  delightful  friend,  Mr. 
Trull,  against  me?  The  resolution  of  the  Court  could  have 
been  anticipated.  It  was  the  childishness  of  foolishness  to  have 
had  any  other  anticipation.  But  where  did  the  decision  leave 
the  Court?  There  stands  the  decision  in  the  70th  of  New  York, 
which  I  have  quoted.  It  was  put  upon  our  brief  before  the  Court 
of  Common  Pleas.  It  was  argued  with  all  the  strenuous  force 
of  counsel.  It  was  never  lost  sight  of.  Pressed,  urged,  con- 
tended for.  No  one  can  deny  this.  I  have  the  briefs  here  in 
print.  If  the  Court  or  the  counsel  takes  any  delight  in  such  a 
decision  as  that,  let  them  enjoy  the  ugly  felicity. 

Mr.  Trull — Mr.  Shaw,  you  are  likely  to  be  committed  for 
contempt,  in  speaking  in  the  manner  you  do,  of  the  Court  of 
Common  Pleas. 

Mr.  Shaw — In  view  of  that  danger,  it  may  be  prudent  to 
qualify  my  remarks.  I  spoke  of  the  Court  as  a  "horse-railroad 
Court."  To  be  precisely  accurate,  and  to  make  sure  of  the  partic- 
ular situation,  I  ought  to  have  said,  in  view  of  the  fact  that  you 
are  running  bob-tail  cars  on  one  of  our  routes — the  Forty-second 
street  route — I  ought  to  have  said  that  the  Court  was  a  o?z-e-horse- 
railroad  Court.  You  can't  commit  me  on  that,  because  it  is  an 
absolute  verity. 

I  also  notice  that  my  astute  friend,  Mr.  Trull," did  not  make  any 
point  on  those  Common  Pleas  decisions  in  his  argument,  for  I  know 
his  need  of  the  authority  in  70th  1ST.  Y.  Reports  to  carry  on 
some  of  his  outside  operations ;  he  has  furtively  put 
those  opinions  of  the  Court  of  Common  Pleas  before  you 
without  presenting  them  to  me  to  be  challenged.    I  rejoice  that 


41 

the  substance  of  them  is  now  before  you.  I  intended  to 
challenge  them  when  they  came,  as  I  expected  they  would. 
Now,  those  opinions  were  laid  before  the  General  Term  of  the 
Supreme  Court  that  appointed  you ;  they  were  there  cited,  dis- 
cussed and  dismissed,  and  following  immediately  thereafter  with 
all  that  discussion  before  the  Court,  and  that  opinion  beiug 
forced  upon  its  attention,  it  was  held  that  the  situation  was 
complete  to  ask  for  a  commission  to  review  the  proceedings  of 
the  Cable  Rapid  Transit  Commissioners.  And  you,  gentlemen 
of  this  Commission,  were  appointed  to  that  end. 

Now,  Mr.  Cozans,  in  his  argument  yesterday,  laid  much  stress 
upon  the  proviso  in  our  Articles  of  Association  attached  to  each  one 
of  our  routes — a  proviso  in  form,  precisely  the  same  that  was 
attached  by  the  Elevated  Railroad  Commissioners  to  all  of  their 
routes.  Mr.  Cozans  will  not  complain  that  I  do  him  injustice  if 
I  say  that  the  substance  of  his  argument  lay  in  his  criticism  upon 
our  corporate  capacity  on  account  of  that  proviso.  Here  it  is  as  it 
stands  upon  our  Articles  (page  129),  and  as  it  stands  in  the  articles 
of  the  Elevated  Roads  (page  332).  And  yet,  as  Mr.  Cozans  con- 
tends, with  that  much  vaunted  fatal  proviso  in  it — with  its  nulli- 
fying force  and  effect,  so  dwelt  upon  by  Mr.  Cozans,  the  Court  of 
Appeals  did  not  think  enough  of  it,  in  deciding  the  Elevated 
Railroad  case,  to  speak  of  it  in  then-  opinion.  The  proviso 
provides  for  crossing  streets  prohibited  by  statute.  The  Mayors 
Elevated  Railway  Commissioners  took  the  same  view  of  their 
duty  that  the  Mayor's  Cable  Commissioners  have  taken  of  theirs. 
Both  Commissions  laid  out  routes  to  complete  a  system  that 
crossed  prohibited  streets.  The  Elevated  Commissioners  laid  a 
surface  railroad  that  crossed  another  street  steam-railroad  at 
grade  just  as  we  have  done — the  Hudson  River  Railroad — and 
everlasting  changes  were  rung  in  the  Supreme  Court  and  in  the 
Court  of  Appeals  upon  this  rape  upon  the  law,  as  it  was  called  ; 
and  yet,  the  Court  of  Appeals  permitted  the  ravishment 
and  did  not  notice  it.  It  may  strike  our  opponents  as  a  re- 
markable coincidence  that  the  Mavor's  Cable  Commissioners  did 
always,  except  in  a  single  instance,  just  what  the  Mayor  s  Elevated 
Commissioners  had  done  and  which  the  Court  of  Appeals  had 
approved.    But  to  one  who  values  judicial  precedents — stare 


i 


42 

decisis,  there  can't  be  any  wonder  about  it.  The  path  had  been 
trodden  before — was  well  worn,  and  was  religiously  followed. 

But  finally,  Mr.  Wickes,  who  says  he  represents  the  Mayor, 
Aldermen,  and  Commonality  of  the  City  of  New  York  (but 
who  fails  to  present  his  credentials  and  Mr.  Cozans,  Mr. 
Trull,  Mr.  Coudert,  and  the  wThole  array  you  have  had  before  you, 
declare  that  we  are  going  to  destroy  their  clients  on  the  subject 
of  stations.  "  Where  are  you  going  to  put  your  stations  ? " 
say  they.  u  You  have  not  fixed  them.  How,"  say  they,  "  do 
61  the  people  know  how  they  are  going  to  approach  your  railroad, 
"  whether  they  want  to  use  it  or  not,  if  the  stations  are  not  located 
"  precisely  with  respect  to  their  houses  ?  Why,"  say  they,  "  this 
"  power  of  locating  stations  has  been  left  to  the  volition  of  this 
ft  gigantic,  remorseless,  insatiable  and  irresponsible  cable  corpo- 
"  ration." 

They  speak  of  this  as  a  great  crime.  Yery  well ;  the  elevated 
railroad  people  took  their  charter  under  precisely  similar  conditions. 
I  give  the  clause  of  granting  power  of  the  Elevated  Railroad 
Company.  I  read  from  page  341  of  the  Proceedings  of  the 
Elevated  Railway  Commissioners  :  "  Authority  is  given  for  the 
construction  of  such  supports,"  *  *  *  "  stations,"  *  *  * 
"in  the  locations  determined  by  the  Commisioners  as  shall  be 
proper  for  the  purpose  of  rapid  transit  railways  and  as  shall  be 
necessary  to  meet  the  requirements  of  the  traveling  public." 
That  is  all  there  is  in  it,  and  we  have  prescribed  in  the  same 
verbiage,  and  the  Court  of  Appeals  did  not  call  that  an  invalid 
corporation,  neither  will  they  call  ours  an  invalid  corporation  on 
that  account. 

We  have  but  very  little  to  do  with  the  question  of  stations 
so  far  as  our  surface  line  is  concerned,  except  the  terminal 
stations.  The  argument  cannot  apply  to  us  so  far  as  our 
surface  line  is  concerned.  But  as  to  the  elevated  lines,  the 
language  applies  precisely  as  the  language  is  adopted  by  the  old 
Elevated  Rapid  Transit  Commission. 

But  my  friend,  Mr.  Trull,  tells  us  there  has  been  an  adjudi- 
cation of  that  matter  in  the  case  of  Mattlage  against  the  New 
York  Elevated  Railroad  Company,  which  has  made  it  res  adjudi- 
cata,  and  fatally  destructive  to  us.    He  exerted  all  his  dynamitic 


43 

earnestness  to  say  this.  There  was  his  uplifted  arm.  There  was 
his  emphatic  forefinger.  I  see  them  now.  I  looked  up  the 
case,  and  I  found  that  the  fact  was  that  the  New  York  Elevated 
Railroad  Company,  which  is  now  mansarded  in  common  with 
the  Metropolitan  Company  by  the  Manhattan  Railway  Company, 
had  a  charter  that  had  been  in  operation  under  a  law  passed — a 
special  act — long  prior  to  the  Act  of  1875,  which  allowed  it  to  put 
its  stations  within  the  street  upon  which  its  line  wjas  located  by 
statute,  and  not  elsewhere,  but  that  at  the  corner  of  Warren  and 
Greenwich  streets  they  threw  a  station  out  into  Warren,  in  viola- 
tion of  the  powers  created  by  statutory  charter,  and  when  the 
attention  of  the  Court  was  called  to  the  subject,  that  ruling  was 
made,  but  it  was  not  made  against  the  Manhattan  Railway  Com- 
pany— it  could  not  have  been  made  against  it ;  it  was  not  in 
existence  when  the  wrong  transpired  ;  but  it  was  made  against 
the  New  York  Elevated  Railroad  Company  for  acts  that  it  did 
independently  of  its  being  a  part  of  the  Manhattan  Railway  sys- 
tem, which  made  no  provision  in  the  matter  and  never  professed 
to  have  the  right  to  to  take  anything  more  than  the  statute  had 
given  the  New  York  Elevated  Railroad  Company.  So  much  for 
that  res  adjudicata.  How  does  my  friend  Trull  feel  over  this 
exposition  !  He  quoted  the  Mattlage  case  as  though  I  could. not 
answer  it.  Is  there  any  doubt  about  his  discomfiture  %  Let  us 
pass  on. 

Bat  Mr.  Wickes  comes  here  with  the  authority,  and  by  direc- 
tion, as  he  says,  of  the  Corporation  Counsel,  and  he  says,  "  I  have 
got  an  objection  that  no  man  can  answer."  An  objection  that  will 
estop  and  conclude  our  Cable  Company  forever.  He,  of  course,  has 
no  right  here.  I  deny  it  utterly,  absolutely.  But  what  is  his  ob- 
jection ?  For  we  must  know  if  there  is  any  spot  of  attack  in  our 
corporate  rights.  What  does  he  say  ?  Why  he  says  this  :  The  clause 
in  the  Rapid  Transit  Act  that  requires  a  forfeiture  to  the  Board 
of  Supervisors  has  not  been  complied  with,  for  the  reason  that  we 
are  to  forfeit  only  that  portion  of  our  line  that  we  fail  to  construct 
within  the  time  limited  for  its  construction.  This  clause  reads 
as  follows  :  "  Section  7.  The  said  commissioners  shall  prepare 
appropriate  articles  of  association,"  which " 

*  *    "  shall  provide  for  the  release  and  forfeiture,  to 


44 

# 

the  Supervisors  of  the  county,  of  all  rights  and  franchises 
acquired  by  such  corporation  in  case  such  railway  or  railways 
shall  not  be  completed  within  the  time  and  upon  the  conditions 
therein  provided."    *       *  * 

Well,  this  provision  was  put  into  an  act,  passed  in  the  year  1875. 
In  the  year  1870  the  Board  of  Supervisors  was  abolished  (chapter 
190,  Laws  of  1870).  So,  therefore,  you  see  that  the  elevated 
railroads,  built  under  the  Act  of  1875,  which  contains  this  clause, 
were  subjected  to  this  scheme  of  forfeiture.  Were  they  for- 
feited ?  They  didn't  build  all  the  roads  they  were  authorized  to 
build.  They  built  only  two,  and  they  were  authorized  to  build 
twenty-five.  Does  anybody  appear  here  to  say  that  because  they 
built  only  two  instead  of  twenty -five — because  they  builded  only 
elevated  and  omitted  the  construction  of  surface  lines,  that  the 
whole  elevated  system  of  the  city  can  be  destroyed  on  a  sham 
objection  of  the  character  presented  here  1  We  followed  in  that 
clause  precisely  as  had  been  done  before  in  the  elevated  railways 
I  have  alluded  to — the  precise  language  of  the  old  Rapid  Transit 
Commission.  But  what  Mr.  Wickes  meant,  and  how  he  came  to 
throw  out  a  dark  insinuation  that  there  was  something  mysterious 
about  that  provision,  I  could  not  at  once,  when  lie  made 
his  objection,  well  determine,  and  I  have  been  looking  up 
that  subject.  This  is  his  suggestion.  There  was  not  any  Board  of 
Supervisors  in  1875  when  this  Rapid  Transit  Act  was  passed.  The 
Board,  it  seems,  had  been  abolished  in  1870  (chapter  190  of  the 
Laws  of  1870).  Well,  what  is  the  effect  of  that?  That  we  are 
to  forfeit  to  a  nonentity,  to  a  nothing  that  cannot  take — why, 
it  is  a  vain  clause  and  amounts  to  nothing,  and  you  might  as  well 
have  written  in  that  statute  that  the  forfeit  should  be  to  the  Khan 
of  Harlem  as  to  the  Supervisors  of  ]STew  York,  or  written  it  on 
water.  This,  I  cannot  doubt,  is  a  complete  answer.  Forfeitures 
being  odious  in  the  law,  are  contemptuously  kicked  out  of 
every  court  of  justice  where  there  is  any  attempt  to  enforce 
them  unless  there  is  the  most  stable  and  necessary  ground  for 
them.  A  brand  of  shame  is  put  upon  their  brow,  and  they  are 
accounted  odious.  The  Court  of  Appeals  had  that  question 
before  them,  and  they  paid  no  attention  to  it. 

But  supposing  that  it  should  be  said,  although  it  has  not 


45 


been  said  or  suggested,  that  by  the  doctrine  of  ci-pres,  the  Board 
of  Aldermen,  acting  as  a  Board  of  Supervisors,  might  take  it. 
Well,  to  that  we  say  the  provision  is  statutory,  and  the  statute  will 
exert  its  own  enforcement.  We  took  our  charter  subject  to  that 
clause,  whether  it  is  in  our  Articles  of  Association  or  not ;  what- 
ever it  may  be,  it  can  be  enforced  against  us  by  whoever  has  the 
right  and  wherever  there  is  the  right.  The  statute  is  a  part  of 
our  charter.  I  suppose  you  are  looking  solely  to  gain  for  the 
public  the  services  we  propose.  I  suppose  you  don't  care  whether 
those  services  are  furnished  by  our  corporation,  and  are  as  willing 
they  should  be  furnished  by  the  supervisors  of  this  county.  If 
that  be  your  state  of  mind,  the  statute,  on  which  I  am  com- 
menting, provides  for  that  precise  contingency. 

Mr.  Trull — You  don't  contend  that  the  statute  does  not 
require  you  to  provide  in  your  Articles  of  Association  for  that? 

Mr.  Shaw — I  do  not  contend  about  it  at  all.  But  I  do  know 
that  whether  or  not  they  contain  provisions  for  the  protection  of 
the  city,  the  statute  will  protect  it,  irrespective  of  any  stipulation 
or  matter  in  our  Articles.  The  statutory  clause  is  there.  Our  cor- 
poration must  abide  by  it  whatever  it  be.  Its  presence  or  absence 
in  our  Articles  of  Association  neither  makes  nor  breaks  us.  You 
can't  assail  our  corporate  life  on  any  such  ground  as  that.  It's 
our  corporate  life  you  are  after.  You  expect  to  take  it  if  you 
can  find  verbal  or  technical  inaccuracies  or  omissions  in  our 
Articles  of  Association.  There  is  nothing  of  the  sort  either 
omitted  or'  included,  as  I  will  presently  show  you,  in  those 
Articles.  But  you  must  yield  up  the  illusion  that  you  and  all 
with  you — all  the  seventeen  orators  to  whom  I  am  replying,  can 
even  meddle  with  that  life — Whet  your  daggers.  Distill  your 
poisons.  Load  your  pistols.  Against  you  all,  ours  is  a  charmed 
life.    You  have  not  legal  capacity  to  harm  us. 

Now,  again,  Mr.  Trull  says,  "  but  if  all  these  objections  fail, 
we  have  got  you  for  a  defect  in  plans."  Well,  our  plans  are  a 
precise  copy  of  the  elevated  railroad  plans,  except  in  one  partic- 
ular, and  in  that  particular  only  the  slightest  u  flexibility,"  sanc- 
tioned in  the  Elevated  Railroad  matter  by  the  General  Term  of 
the  Supreme  Court,  was  indulged  in.    My  friends,  the  enemy, 


46 


have  made  one  fatal  blunder  in  the  whole  line  of  their  opposition. 
It  is  thi6 :  They  have  regarded  the  constitutional  amendment  of 
1875  as  giving  property  rights  to  abutting  owners  and  to  muni- 
cipal authorities  on  streets  for  railroad  services.  Hence  they  say  : 
A  railroad  grant  involves  private  property  rights,  and  therefore 
statutory  proceedings  under  the  Rapid  Transit  Act  must  be 
strictly  pursued.  Nothing  of  the  sort.  ~No  proprietary  right 
was  created  by  the  amendment.  All  was  merely  administrative  to 
promote  public  services.  Wherever  this  occurs  in  a  public  statute 
all  the  King's  horses  and  all  the  King's  men  are  powerless 
to  help  technical  irregularity  and  omissions.  JSTo  statute  was  ever 
drawn  on  such  a  question  that  left  the  Court  without  discretion 
and  power  to  protect  society.  The  Legislature  expects  it.  The 
Court  exercises  it.  It  is  a  singular  fact  that  the  questions  of  the 
alternatives  allowed  to  us  by  our  Articles  of  Association  were 
quoted  from  the  Articles  of  Association  of  the  Elevated  Com- 
pany. It  had  the  same  alternative  to  build  surface  or  elevated 
railroads  that  we  are  allowed  by  our  articles.  Has  the  Court  of 
Appeals  ever  found  that  the  elevated  corporations  were  void 
because  they  contained  a  provision  to  that  effect  ?  I  will  leave 
this  discussion  here  for  to-day,  and  to-morrow  I  will  take  up  the 
plans  for  the  surface  road  and  finish  with  such  expedition  as  I  can. 

The  Commission  then  adjourned  to  eleven  o'clock  on  Thurs- 
day, July  2,  1885. 


The  Commission  convened  at  11  o'clock  on  the  2d  of  July, 
1885,  when  Mr.  Shaw  continued  : 

If  the  Commission  please,  I  concluded  our  presentation 
yesterday  by  a  consideration  of  some  criticisms  of  our  op- 
ponents, or  the  objectors,  upon  our  Articles  of  Association  which 
they  said  were  defective,  and  being  defective,  destroyed  our  cor- 
porate entity,  because,  among  other  things,  our  plans  are  not 
specified.  I  showed  you,  on  the  authority  of  the  Court  of  last 
resort,  that  these  objectors  could  not  question  our  corporate  ca- 
pacity. Whatever  may  be  in  doubt,  that  is  an  indisputable  verity. 
Well,  then,  our  corporate  capacity  must  be  conceded.  But,  say 
our  opponents,  though  we  have  the  clearest  corporate  capacity, 


47 


still,  as  a  corporation,  we  are  not  legally  qualified  to  build  these 
roads,  by  reason  of  the  defect  in  plans  prescribed  by  onr  charter 
amounting  to  an  inhibition  to  our  construction  of  these  roads. 
Let  us  see  about  this.  We  have  to  build  two  sorts  of  railroads, 
one  elevated  and  the  other  surface.  I  showed  you  that  the 
plans  for  our  elevated  road  were  precisely  in  conformity  with  the 
plans  adopted  by  the  Rapid  Transit  Commissioners  that  gave  to 
the  city  our  elevated  roads,  and  that  they  had  been  approved  by 
the  Courts. 

I  now  come  to  the  subject  of  plans  for  the  surface  portion  of 
our  route,  which  is  the  main  part  of  our  system.  The  objectors 
say  you  have  not  made  and  described  definite  plans  for  these  sur- 
face railroads.  They  have  said  it  to  you,  they  have  said  it  to  the 
General  Term,  and  we  have  answered  them  there,  and  the  Gen- 
eral Term  felt  it  was  your  duty  to  go  on,  and  have  in  substance 
said  the  answer  is  complete.  I  will  answer  it  to  you,  and  the 
best  way  to  answer  it  is  to  read  you  the  answer  we  made  to  the 
General  Term  when  that  complaint  was  made.  I  give  you  that 
answer  from  our  printed  brief.  So  far  as  the  indefiniteness 
of  the  specifications  is  concerned,  the  plans  are  quite  as  specific 
as  those  of  the  Elevated  Railroads,  which  were  approved 
by  the  Court.  There  must  be  some  flexibility  in  these  respects. 
It  is  not  to  be  expected  that  working  drawings  should  be  pre- 
scribed by  the  Rapid  Transit  Commissioners  Mayor  Edson  gave 
us.  This  the  Court  declared  when  passing  upon  the  plans  of 
the  Elevated  Railways.  My  associate,  Mr.  Wheeler,  who  was 
one  of  those  Commissioners,  has  taken  great  pains  to  lay  before  you 
the  precise  text  of  the  opinion  of  the  Court  on  this  subject  of 
plans.  This  opinion,  as  he  explained  to  you,  may  be  found  in  an 
abbreviated  and  imperfect  form  in  the  7th  of  Hun,  page  241. 

There  is  a  limit  to  your  patience  and  a  limit  to  my  endurance; 
and  I  can't  go  over  this  matter  again ;  but  you  will  not  fail  to 
note  what  Mr.  Wheeler  so  thoroughly  emphasized,  using  the  lan- 
guage of  the  Court,  that  "  flexibility  "  must  be  an  incident  in  this 
matter  of  plans,  which  should  govern  unforeseen  considerations 
of  physical  necessity  that  might  arise  in  the  construction  of  the 
railways. 

Now,  as  to  the  surface  roads,  there  can  be  no  more  definite 


48 


description  of  a  surface  cable  road  than  that  given  in  our  Articles 
of  Association,  namely,  "  according  to  the  most  approved  plan  of 
cable  traction  as  operated  in  San  Francisco  and  Chicago."  The 
cable  roads  of  those  cities  are  of  world-wide  repute,  and  may  be 
considered  as  a  conspicuous  working  model.  This  method  of 
description  has  been  sanctioned  by  the  Legislatures  in 
the  charters  of  nearly  all  of  our  horse  railroads, 
which  uniformly,  by  the  acts  of  the  Legislature, 
are  required  to  be  built  "  according  to  the  most  approved  plan  of 
horse  street  railroads."  Charter  after  charter  of  these  horse-rail- 
road objectors  who  are  making  clamor  about  our  plans,  contain 
this  very  phrase.  Now  what  more  can  they  want  ?  If  I  had  a 
model  in  this  room  and  could  exhibit  the  mechanical  contrivances 
of  how  we  could  work  practically  a  surface  road  by  cable  pro- 
cess, why  that  would  answer  the  statute  according  to  their 
notion ;  but  there  is  the  City  of  Chicago,  notwithstanding  our 
city's  expert,  Mr.  McKay,  who  in  his  affidavit  describes  it  as  a 
deserted  village  with  the  grass  growing  in  its  streets  and  no  en 
terprise;  no  industry  and  no  business,  for  which  my  friend,  Mr. 
Wickes,  apologized  and  said  Mr.  McKay  did  mistake  himself  a 
little  at  that  point. 

Mr.  Wickes— When  did  I  say  that  ? 

Mr.  Shaw — In  your  argument.  Dare  you  say  you  didn't  ? 
You  don't  deny  it.  The  stenographer's  minutes  can  be  r  ef  erred  to. 
Of  course  Mr.  McKay  mistook  himself,  just  as  Mr.  Crowley  did, 
just  as  Mr.  Birdsall  and  Mrs.  Twitchell  and  the  rest  of  the  city 
experts  have  done;  this  veracious  looseness,  or  rather  the  loose 
veraciousness,  of  all  the  city  experts,  and  there  are  no  other 
experts  here,  seems  to  characterize  all  these  statements ;  our 
working  model  is  in  the  City  of  Chicago,  the  very  centre  of  the 
business  activity  of  two-thirds  of  this  country  (looking  at  the 
map  on  the  wall  hung  there  by  Mr.  Wickes). 

The  Chairman — Do  you  refer  to  that  as  an  exhibit  ? 

Mr.  Shaw — I  am  glancing  on  the  map  that  all  the  newspapers 
have  seen  and  commented  upon,  and  which  Mr.  Wickes  has  placed 
upon  your  walls.    Forty  railroads  center  in  Chicago.   It  stands 


49 


audaciously  rivaling  in  its  pretentions  our  own  great  imperial 
city ;  and  yet  McKay  says  that  grass  is  growing  there.  I  have 
read  his  testimony  carefully.  He  is  Mr.Wickes'  principal  expert 
witness.  I  derive  from  his  testimony  that  there  is  no  such  city 
on  earth  as  the  City  of  Chicago.  That  such  a  city  once  existed, 
but  was  destroyed  by  a  cable  railroad.  That  after  this  calamity 
historians  have  uniformly  spoken  of  Chicago  as  Atlantis.  That 
before  the  advent  of  cable  railroads  Chicago  was  looked  upon  as- 
an  important  provincial  town,  but  cable  roads  destroyed  it. 
Troja  fuit. 

Now,  what  am  I  to  do  with  such  testimony  as  this  !  There  is 
Chicago.  Look  at  the  queen  of  cities  !  Don't  crowd  me  to  give 
you  epithets  to  compliment  her !  She  stands  there.  She 
stretches  her  jeweled  fingers  to  the  North,  to  the  South,  to  the 
East  and  to  the  Wect — not  to  beckon,  but  to  acknowledge  com- 
pliments to  her  consequence.  Into  her  lap  the  resources  of  this 
hemisphere  are  poured  in  gems  of  sparkling  showers  that  rival 
all  our  dreams  of  the  exhaustless  Inde.  A  cable  road  has  been 
built  there  and  there  are  twenty  miles  of  it,  ten  of  double  track, 
and  it  is  on  the  south  side  of  the  city,  and  it  is  a  part  of  eighty- 
seven  miles  of  railway.  The  rolling  prairie  is  on  the  west  and 
north  of  the  Chicago  river.  The  vast  acres  of  Cook  County  are 
put  upon  this  sheet  on  the  wall  to  show  where  Chicago  is ; 
and  everybody  knows  that  on  the  south  side  of  that  river  lies 
Chicago  ;  and  there  where  that  cable  railroad  is  is  its  custom- 
house, its  post-office,  its  great  hotels,  the  very  centre  of  its  energy, 
the  very  heart  and  core  of  its  life ;  the  rest  is  suburban.  Is  this 
map  put  before  us  and  to  be  argued  about  as  a  fraud  and  cheat 
in  aid  of  this  Sterling  testimony  to  which  we  have  been  treated  ? 
The  most  considerable  of  the  city  with  all  its  activity  is  there. 
What  does  that  railroad  do  ?  It  carries  150,000  passengers  daily 
or  55,000,000  or  more  a  year.  Look  at  this  great  fact,  and  keep 
looking  at  it.  It  carries  the  largest  number  of  passengers  of  any 
street  surface  railroad  beneath  the  sun ;  that  is  the  model  upon 
which  our  road  is  based.  Look  at  it.  That  map  reminds  me  of 
a  map  I  saw  once  in  Norway.  There  I  saw  a  map  of  the  United 
States  and  the  British  Dominions  of  North  America,  and  in  the 
lower  corner  of  it  a  little  bit,  a  fragment  of  the  map  represented 
4 


50 


the  United  States ;  and  Canada  was  put  in  glaring  colors,  and 
large  almost  as  the  globe  itself.  That  was  to  invite 
immigration  to  her  colonial  dependency  by  the  policy  of 
the  British  government.  And  on  that  map  our  own  great  Repub- 
lic, with  its  55,000,000  population,  looked  like  an  insignificant 
speck,  and  Canada  looked  as  though  it  was  the  regal  domain  of  a 
Sesostris.  I  regret  I  have  not  at  my  hand  a  map  of  the  City 
of  San  Francisco  ;  but  they  have  some  ten  or  twelve  railways  in 
that  city,  seven  of  which  are  operated  by  the  cable,  five  of  which 
have  been  converted  from  horse  tramways  to  a  cable  railway. 
(Here  Mr.  Shaw's  assistant  handed  him  a  map  of  San  Francisco.) 
Look  at  that  map  (handing  map  to  Commissioners),  exaggerate 
its  proportions  in  your  mind's  eye,  so  as  to  relatively  correspond 
to  that  map  on  the  wall  (pointing  to  the  large  Chicago  map  in- 
troduced by  the  Corporation  Counsel).  San  Francisco  would  show 
a  railroad  system  almost  as  small  and  insignificant  as  it  is  on  that 
Chicago  map. 

Now  it  turns  out  that  in  San  Francisco,  according  to  the 
statistics  put  upon  this  map,  the  seven  cable  roads  they  have  there 
cover  the  most  important  part  of  the  whole  city  ;  and  it  also  turns 
out  that  the  property  along  the  line  of  each  cable  route  has  increased 
in  value  by  reason  of  these  cable  roads.  That  there  has  been  an  im- 
mense increment  of  value,  while  the  property  along  the  lines  of  the 
roads  that  are  not  cable,  has  depreciated.  It  is  shown  in  our  proofs 
that  the  conversion  of  the  horse  railroads  to  cable  roads  has  made 
nnpaying  horse  railways  profitable,  because  when  cabled  they  have 
attracted  traffic,  and  thereby  given  values  to  property.  Their  cable 
roads  are  paying  and  stand  like  gas  stock  in  this  city,  the  first  and 
foremost  property  investment.  Property  along  the  lines  of  the  horse 
roads,  which  do  not  pay,  has  depreciated.  That  lithograph  (point- 
ing to  large  sheet  on  the  wall)  is  the  return  from  the  municipal 
authorities  of  the  City  of  San  Francisco.  It  is  authenticated  by 
the  Mayor  and  the  City  Assessor  of  San  Francisco,  and  shows  the 
beneficial  effects  of  this  cable  system.  This  system  has  been  in 
operation  there  ten  or  eleven  years,  and  the  world  has  known 
of  it  and  the  citizens  have  been  proud  of  it,  as  the  citizens 
of  Chicago  are  proud  of  their  cable  roads ;  it  is  doing  the 
immense  work  I  have  spoken  of,  and  it  was  perfectly  proper 


51 


for  our  Mayor's  Rapid  Transit  Commissioners  to  refer,  in 
their  Articles  of  Association  as  they  did,  to  a  working,  acting  and 
practical  model  for  a  system  of  cable  roads.  Well,  that  disposes 
of  the  criticisms  upon  the  Articles  of  Association,  so  far  as  plans  for 
cable  surface  roads  are  concerned. 

But  Mr.  Cozans  argued  that  a  cable  road  was  not  possible, 
within  the  meaning  of  the  statute,  as  not  being  a  steam  railroad. 
What  authority  has  he  for  that  '( 

Mr.  Cozans— The  84  K  Y. 

Mr.  Shaw — I  do  not  need  to  be  coached  on  that  case,  for  I  know 
it  well.  Now,  the  fortieth  section  of  this  Rapid  Transit  Act, 
which  in  the  running  fire  that  has  taken  place  before  the  Commis- 
sion,in  discussing  the  question,  illustrates  what  interpretation  ought 
to  be  put  upon  it,  provides  that  this  Rapid  Transit  Act  should 
be  known  and  distinguished  from  all  other  acts  as  a  separate 
system  of  legislation  or  of  railroad  services  for  cities.  That  act 
may  or  may  not  be  at  once  its  monument  and  its  tomb ;  but, 
whatever  it  is,  it  is  an  act  all  by  itself  ;  it  is  sui  generis.  Con- 
template it  as  unassailable  by  analogy  or  by  precedent !  When 
these  gentlemen  who  are  opposing  me  can  realize  this  great  fact, 
they  may  be  able  to  distinguish  law  propositions  which  favor 
them  and  assail  me.  Until  then,  let  them  keep  all  their  arrows 
in  their  quiver.  Such  provision  for  railroad  services  was  to  be 
disconnected  from  all  railroad  services  under  the  Act  of  1850  ;  all 
railroad  services  to  the  public  under  any  private  or  special  charter. 
It  is  to  stand  by  itself,  to  be  its  own  completed  self,  sui  generis, 
without  any  other  connection  or  contention  with  any  other  statute 
or  thing.  But  in  the  very  belly  of  the  Act,  in  section  36,  the 
Act  did  take  in  two  separate  corporations  which  were  there  as 
exceptions  from  the  general  operation  of  the  Act,  and  those  were 
the  New  York  Elevated  and  the  Gilbert  Elevated  Roads.  These 
exceptions  were  as  conspicuous  as  a  lofty  mountain  on  an  immense 
plain,  and  are  distinguished  because  they  stand  alone.  There 
they  are,  dominating  figures  in  this  great  system  of  legislation 
for  intramural  transit.  Thev  have  been  sanctioned  bv  the  author- 
ity  of  all  our  courts,  and  are  therefore  judicially  hallowed. 

They  rise  like  some  tall  cliff  whose  awful  form 
Swells  from  the  vale  and  midway  leaves  the  storm. 


52 


But,  there  is  Section  40  of  this  Rapid  Transit  Act.  Look  at 
it !  Contemplate  it !  Don't  it  tell  you  that  it  dominates  the 
entire  situation  contemplated  by  the  Act,  and  that  Section  3  6  is 
but  an  incident  in  the  general  scenery — or  field  of  legislation 
intended  to  be  created  and  covered  by  that  Act  ? 

Outside  of  that  this  Rapid  Transit  Act  was  to  stand,  and  to 
inaugurate,  and  be  precursor,  the  foundation  of  a  separate,  inde- 
pendent system  of  legislation  for  these  public  services  in  cities. 
The  Fortieth  Section,  to  which  I  have  alluded — if  vour  Honors 
will  look  at  it  you  will  see  that  the  result  and  purpose  of  that 
section  is  that  no  steam  railway  company,  under  the  Act  of  1850 
or  any  of  its  amendments,  nor  any  other  railroad  company  by  any 
special  legislation,  anyway  or  anyhow,  except  those  railroads  that 
might  come  in  under  the  Thirty-sixth  Section  of  the  Act,  should 
have  any  consideration  or  recognition  under  this  act.  That,  I  think, 
you  will  find  is  clear.  I  say  you  will  find  it  clear.  Well,  it  is  clear. 
But  that  Act  of  1875  was  a  General  Act.  It  provided  for  precise 
conditions.  Through  its  narrow  gateway  a  well-advised,  decorous 
corporate  procession  like  ours  might  pass,  and  enter  into  the  enjoy- 
ment of  the  powers  and  privileges  it  confers.  Our  corporation 
has  passed  through  that  gateway.    That  you  now  understand. 

That  Rapid  Transit  Act  is  popularly  supposed  to  have  been  drawn, 
probably  was  drawn  by  the  master  hand  of  Governor  Tilden ;  at  all 
events  it  is  known  that  his  private  secretary  bore  it  to  the  Speaker 
of  the  House,  who  left  his  seat  and  went  upon  the  floor  of  the 
House  of  Assembly  to  introduce  it,  and  it  was  passed  under  the 
auspices  of  Mr.  Tilden,  who  was  then  Governor ;  there  is  no 
doubt  of  this ;  and  it  was  universally  said  he  drew  the  Act.  He 
drew  it,  as  has  been  charged  in  the  briefs  quoted  by  our  adversa- 
ries in  the  Court  of  Appeals,  as  a  shrewd  and  crafty  measure  to 
save  the  Gilbert  Elevated  and  the  New  York  Elevated  Compa- 
nies' charters,  and  hence  section  36.  All  the  rest  of  the  Act  was 
a  public  act,  and  belongs  of  right  to  any  competent  combination 
of  citizens  who  may  publicly  and  openly  invoke  its  powers.  We 
draw  the  veil  here.  We  don't  know,  or  profess  to  know  what 
Governor  Tilden  did  ;  but  we  do  know  that  that  Act  is  a  general 
Act,  and  that  our  method  of  procedure  has  adequate  vigor  under 
it. 


58 


Now,  we  stand  on  this  Rapid  Transit  Act,  cut  loose  from  all 
other  Acts.  Mr.  Cozans  seems  to  misconceive,  and  I  noticed  my 
friend  Mr.  Trull,  and  Mr.  Coudert  and  Mr.  Hand  also  miscon- 
ceive the  effect  of  that  section  40  of  the  Rapid  Transit  Act.  But 
we  are  indubitably  within  the  narrow  limit  of  that  Act,  and  all 
decisions  and  all  authorities  under  other  Acts  are  inapplicable  to 
this  Act.  Counselor  Cozans  cites  the  case  from  the  84th  N.  Y., 
which  was  a  case  which  arose  under  the  General  Railwav  Laws  of 
the  State,  and  not  under  the  Rapid  Transit  Act.  That  answers 
him,  and  answers  him  fully. 

Mr.  Cozans  —  That  decision  was  rendered  under  a  Special 
Act. 

Mr.  Shaw — General  Act,  or  Special  Act,  it  does  not  make 
any  difference.  It  was  not  the  Rapid  Transit  Act.  This  Rapid 
Transit  Act  under  which  our  rights  accrue,  says,  subdivision  4, 
section  26,  that  we  may  have  any  motor  other  than  animal  power. 
I  give  you  the  subdivision,  and  ever  after  let  there  be  no  question 
about  it. 

"  Sec.  26,  Sub.  4.  To  take  and  convey  persons  and  property  on  their  rail- 
"  road  by  the  power  or  force  of  steam,  or  by  any  motor  other  than  animal 
*'  power,  and  to  receive  compensation  therefor." 

I  cannot  inquire  what  the  Courts  may  say  about  some  other 
cases  under  some  separate  and  independent  system  of  railroad 
legislation,  but  under  this  system  of  railroad  legislation  they  have 
said  in  that  subdivision,  section  26,  that  our  motive  power  may 
be  any  motive  power  other  than  animal. 

(Recess  taken  for  twenty  minutes.) 

Mr.  Shaw,  resuming,  said  : 

The  most  formidable  criticism  made  upon  our  Articles  of  Asso- 
ciation goes  to  our  corporate  capacity  to  lay  out  surface  railroads 
across  town.  Mr.  Trull  and  Mr.  Cozans  have  been  very  careful  to 
call  your  attention  to  the  fact  that  the  act  provides  that  we  shall 
not  cross  steam  railways  at  grade,  and  they  charged  the  Mayor's 
Commissioners  that  gave  us  our  charter  with  a  deliberate  viola- 
tion of  th3  law  because  we  had  crossed  the  Hudson  River  Rail- 


54 


road  at  grade.  In  the  charge,  and  in  the  allusion  to  section  4  of 
the  Rapid  Transit  Statute,  they  settled  once  and  forever  any 
doubt  that  should  be  upon  your  mind  as  to  the  meaning  of  the 
words  "  over,"  "  through,"  "  under,"  "  across."  In  the  opinions 
of  counsel,  which  are  the  opinions  that 'the  Rapid  Transit  Commis- 
sioners who  gave  us  these  Articles  of  Association  solicited  and 
obtained,  this  matter  is  unfolded  with  conspicuous  definiteness. 

Among  those  opinions  which  I  have  laid  before  you,  you  will 
find  the  opinion  of  Mr.  Develin.  That  opinion  calls  attention  to 
that  very  point,  and  is  made  the  basis,  with  several  comments  in 
undoubted  confidence  that  the  statute  authorizes  a  surface  cable 
railroad.  Mr.  Wheeler  H.  Peckham  also  gives  us  an  opinion  on 
that  question. 

The  Chairman — Upon  that  question  ? 

Mr.  Shaw — Yes,  sir ;  and  on  that  question  alone.  Ex-Judge 
Leonard  has  an  opinion  on  that  question  of  law ;  Mr.  Evarts  has 
an  opinion  on  that  question ;  Mr.  Loomis  elaborately  considers  it ; 
and  I  had  the  honor  to  offer  an  opinion  on  that  subject.  I  was 
the  counsel  to  the  Cable  Commission,  on  whose  work  you  are 
sitting  in  review.  It  was  not  without  fear  and  trembling  that  I 
considered  almost  every  question  that  Commission  had  to  pass 
upon,  but  this  question  was  the  least  embarrassing  of  all ;  for  I 
knew,  a  mere  child  could  know,  who  had  capacity  to  consult  a 
dictionary,  that  cable  surface  roads  could  be  built  under  the  act. 
The  Elevated  Railway  Commissioners,  whose  action  has  been 
approved  by  every  court,  had  no  doubt  about  that  right.  They 
laid  out  routes  on  the  surface.  The  act  being  a  public  act,  and 
applicable  to  all  the  State,  and,  as  was  with  great  force  stated  by 
Mr.  Church  yesterday,  not  available,  to  any  other  city  except 
Brooklyn  and  Xew  York,  unless  it  could  furnish  surface  rail- 
roads. Brooklyn  might  have  an  elevated  or  an  underground  rail- 
way, New  York  might  have  an  elevated  or  underground  railway, 
but  no  city,  except  these  cities,  within  the  whole  State,  could  prac- 
tically avail  themselves  of  this  act  which  is  to  provide  steam  transit 
facilities  for  counties  of  the  State  unless  surface  roads  could  be 
built.  Let  there  be  no  mistake  about  this.  I  say  that  unless 
surface   roads   can   be  built    under  that   act  anywhere  in 


55 


the  State,  it  is  not  a  general  act,  and  that  it  is  a  fraud  and 
a  scandal  to  our  Legislature  and  to  our  courts.  Such  a  thought 
would  horrify  civilization.  You  have  been  to  Albany,  you 
have  clambered  that  steep  hill — and  you  know  it  is  so  painful  to 
reach  the  Capitol  from  the  depot — to  see  those  horses  struggling, 
that  you  prefer  always  to  walk.  They  are  about  cabling  those 
cars ;  they  have  contracts  to  cable  them  with  our  corporation. 
The  Rapid  Transit  Act  is  available  to  do  that.  It  is  just  so  in 
Ithaca ;  it  is  so  in  Kingston ;  it  is  so  in  Newburgh ;  it  is  so  in 
Poughkeepsie.  All  over  the  spirit  of  cabling  is  going  on,  and  if 
the  system  could  not  be  applied  to  the  surface,  why  the  act  would 
not  be  available  to  any  city  except  the  two  cities  of  New  York 
and  Brooklyn. 

Mr.  Trull — Is  it  not  a  fact  that  the  Act  of  1884  provides  for 
a  cable  road  % 

Mr.  Shaw — But  it  is  also  a  fact  that  the  Act  of  18S4  was  not 
in  being  when  the  Act  of  1875  was  passed,  nor  was  it  in  being 
when  these  Cable  Rapid  Transit  Commissioners  laid  out  these 
routes.  As  to  the  Act  of  1884,  I  may  say  to  Mr.  Trull  that  pro- 
vision was  put  into  it  for  the  purpose  of  destroying  our  corpora- 
tion by  men  who  controlled  legislation. 

Now,  it  is  not  necessary  for  me  to  argue  that  proposition 
further,  but  you  now  know  how  cautiously  and  carefully  the 
Cable  Rapid  Transit  Commissioners  proceeded  in  laying  out  this 
system  of  routes ;  what  care  they  took  to  get  the  opinions  of 
counsel  and  have  the  Statute  searched  for  precedents.  They 
knew  what  the  previous  Commission  had  done  in  laying  out  ele- 
vated and  surface  roads ;  the  very  form  that  was  laid  before 
that  Commission  by  me  was  a  bond — a  mortgage  bond  of  the 
Metropolitan  Elevated  Railway  Company — that  provided  on  its 
very  face  that  the  security  was  upon  the  elevated  and  surfacelmes 
of  that  corporation.  Those  bonds  are  traded  in  by  the  millions  on 
the  street ;  they  are  securities  for  fortunes.  That  bond  was  prepared 
before  the  railroad  was  built,  and  in  anticipation  of  the  construc- 
tion of  surface  roads.  The  bond  was  drawn  upon  the  Article 
that  allowed  the  building  of  surface  roads.  The  validity  of  that 
bond  has  never  been  questioned. 


56 


i"  hold,  that  if  there  is  one  clear  truth,  indisputable,  unques- 
tionable in  this  whole  business,  it  is  the  right  under  the  Act  of 
1875  to  build  surface  roads  of  any  variety  exce/>t  those  to  be 
operated  by  animal  power,  and  this  Act  of  1884  recognizes  it. 
By  the  very  section  16  of  that  act,  which  our  opponents  rely 
upon  to  destroy  us,  it  is  recognized ;  for  they  say  that  no  more 
surface  roads  shall  be  built  under  chapter  606  of  the  Laws  of  1875, 
under  authority  of  Commissioners  to  be  appointed  under  that  act. 
(Here  Mr.  Shaw  read  the  section.)  ]STo  more  surface  roads — no 
surface  roads.  There  is  a  very  clear  recognition  in  the  Statute 
itself.  Now,  if  the  Commission  please,  we  had  great  debate  on 
this  question  in  Albany  before  committees  of  the  Legislature,  and 
uniformly  in  every  committee  they  reported  upon  our  rights,  and 
our  right  to  have  surface  roads  under  this  Bapid  Transit  Act  of 
1 875.  While  with  the  blare  of  the  bugle  and  with  their  provender 
and  their  boodle  they  went  to  oppose  me,  they  never  could  defeat 
or  get  it  out  of  the  head  of  any  committee  under  the  presenta- 
tions I  made,  that  the  power  is  complete.  And  when  they 
made  their  makeshifts  and  reversed  reports  of  committees,  and 
passed  this  sixteenth  section,  they  had  to  recognize  this  right  to 
surface  roads  as  the  Court  of  Appeals  had  so  recognized  in  the 
elevated  railway  cases.  There  can  be  no  question  about  it.  But 
in  section  eighteen  they  provide  for  existing  street  surface  rail- 
road corporations,  and  they  divide  them  into  roads  or  companies 
that  have  a  right  to  build  roads  that  are  horse  railroads  and  other 
roads  that  are  not  horse  railroads,  and  what  other  road  is  not  a 
horse  railroad  but  our  cable  road  1    I  clinch  the  argument  there. 

I  omitted  to  notice  in  its  proper  place  the  following  item  : 
that  Boute  No.  1,  when  it  was  located,  was  merely  located  with- 
out respect  to  plan.  The  Commissioners  thought  that  there  ought 
to  be  a  road  on  Boute  No.  1  and  they  adopted  the  route  irrespec- 
tive of  the  plan  or  the  way  of  operating  it,  and  afterwards  the 
plan  was  fitted  to  it.  It  was  passed  as  a  desirable  route  for  a 
railway,  irrespective  of  the  method  of  its  operation. 

The  next  criticism  that  is  made  on  these  Articles  of  Associa- 
tion is,  that  they  do  not  fix  the  time  with  sufficient  definiteness 
within  which  the  railways  should  be  constructed.  We  claim  that 
the  correct  interpretation  of  that  article  is  this,  that  the  time 


57 

begins  to  rim  from  the  time  we  had  legal  ability  to  commence 
the  work  ;  the  time  of  constructing  the  road  is  from  the  time  of 
lifting  the  first  spadeful  of  earth  until  we  drive  the  last  spike, 
provided  we  lift  our  first  spadeful  of  earth  at  the  moment  after 
we  get  legal  ability  to  do  so.  That  question  was  argued  by  Mr. 
Trull,  on  behalf  of  his  railroad  company,  against  myself  in  the 
Common  Pleas  before  Mr.  Justice  Daly,  and  Justice  Daly  adopted 
the  view  that  the  time  was  too  fluctuating  and  that  it  must  neces- 
sarily impair  the  validity  of  the  corporation.  His  attention  called 
to  that  sentence  or  paragraph,  of  Judge  Earl's  opinion,  which  I 
read  to  the  Commission  yesterday,  that  our  corporate  capacity 
could  not  be  attacked,  incidentally  or  collaterally,  was  ignored. 
He  may  afford  it,  but  no  competent  judge  could  afford  it.  In  a 
case  that  this  corporation  brought  in  the  Supreme  Court  and 
argued  before  the  General  Tenn,  Mr.  Justice  Daly's  opinion  was 
used  for  all  it  was  worth.  Its  full  force  and  effect  was  poured  by 
counsel  upon  the  Court,  and  under  the  pressure  of  the  argu- 
ment that  Mr.  Evarts  made,  no  respect  was  paid  to  it  whatever. 

By  the  Chairman — Was  Judge  Daly's  decision  before  the 
General  Term  of  the  Supreme  Court — the  Court  that  appointed 
ns  ? 

Mr.  Shaw — Yes,  sir ;  and  immediately  upon  the  conclusion  of 
the   argument,  or  rather  after  appropriate   advisement,  this 
Commission  was  appointed  with  all  these  objections  before  the 
•  Court. 

My  friend,  Mr.  Wickes,  the  Deputy  here  of  the  Counsel  to 
the  Corporation,  requests  me  to  be  particular  and  tell  him 
what  was  the  outcome  of  the  proceeding  which  he  called  the 
Second  Avenue  case,  a  proceeding  instituted  by  my  corporation 
against  the  Second  Avenue  R.  R.  Co.  There  shall  be  no  want 
■of  frankness  in  my  disclosures  about  that.  The  outcome  of  this, 
Mr.  Wickes,  was,  that  after  Mr.  Justice  Daly's  opinion  was  fully 
and  at  large  urged  before  the  Court,  this  Commission  was 
appointed.  With  all  these  objections,  that  is  the  definite  out- 
come, but  I  will  be  more  particular  with  you. 

The  Chairman — Was  this  Commission  appointed  on  an  ex 
parte  application  ? 


58 


Mr.  Shaw — Yes,  sir. 

Mr.  Wickes — I  referred  in  my  remark  to  the  litigation  with 
the  Second  Avenue  Railroad  Co. 

Mr.  Shaw — I  am  going  to  deal  with  that,  yon  will  have  it 
life-size  and  twice  as  natural. 

Now,  I  informed  the  Commission  yesterday  that  the  object  of 
the  discussion  of  all  these  criticisms  upon  us  was  not  to  advise  you 
or  argue  with  you  about  what  your  duties  are  in  the  premises, 
whether  you  are  to  consider  these  questions ;  but  to  fix  in  your 
minds  that  if  you  make  this  report  in  favor  of  the  petitioner 
your  work  will  not  be  a  vain  one  ;  but  there  is  not  a  scintilla  of 
doubt  but  what  you  will  be  sustained  by  precedent,  by  authority 
in  every  court.  A  gentleman  who  was  present  yesterday,  with 
whom  I  happened  to  speak  about  this  aspect  of  the  case,  said  to  mer 
"  why  the  elevated  railroads  were  not  built  until  they  went  to  the 
Court  of  Appeals,  because  these  horse  railroads  raised  these  ques- 
tions of  the  constitutionality  of  the  act  and  the  irregularity  of 
the  proceedings  of  the  Rapid  Transit  Commissioners  and  of 
the  Court's  Commissoners  so  that  capital  could  not  be  found  to 
build  them,"  and  that  Cyrus  W.  Field  stepped  in  under  the 
advice  of  his  brother,  David  Dudley,  shouldered  all  the 
questions  and  put  it  through,  and  had  to  do  it  alone, 
single-handed.  The  object  of  this  attack  is  manifestly  to 
work  out  a  dissatisfaction  among  the  promoters  of  our  - 
enterprise  so  as  to  induce  them  to  withhold  their  funds ;  and 
fifteen  horse  railroads  with  their  claque,  big  ones  and  little  ones, 
worthy  ones  and  unworthy  ones,  and  all  the  crew,  all  those  who 
want  railroads,  franchise  hunters,  are  working  and  speaking  into 
everybody's  ear  the  notion  and  the  idea  that  here  is  a  Commission 
going  on  and  doing  things  which  are  entirely  illegal.  Why,  they 
hope  to  frighten  capital  out  of  its  boots  and  they  hope  to  frighten 
you,  they  hope  to  frighten  the  Court  out  of  its  propriety  almost ; 
and  the  object  of  putting  these  criticisms  before  you  and  before 
the  public,  is  no  other  and  no  worthier  than  a  malicious  slander 
of  our  title. 

Do  you  suppose  that  I  do  not  know  that  Mr.  Trull  knows — and 
Mr.  Trull  speaks  for  all  horse  railroads  in  being  and  all  that  hope 


59 


to  be  in  being — that  he  cannot  incidentally  or  collaterally  attack 
this  corporation  ?  He  is  too  good  a  lawyer  not  to  know  that. 
Does  Mr.  Wickes  know  it  ?  There  is  not  a  lawyer  that  has  appeared 
in  this  case  of  so  feeble  capacity  that  does  not  know  it.  JSTow  I 
want  to  clinch  the  nail  beyond  all  peradventnre.  We  have 
had  this  subject  considered  before  the  General  Term  of  the 
Supreme  Court  recently.  It  went  there  on  a  motion  of  the 
horse  railroads.  For  five  weeks  your  work  has  been  suspended 
and  delayed  by  an  injunction  order,  until  the  General  Term 
coifid  decide.  It  is  not  proper  for  me  to  say  what  the  Court  have 
decided,  or  how  I  regard  that  decision.  But  it  is  entirely 
decorous  for  me  to  say  that  the  Court  dissolved  the  injunction, 
and  left  you  to  proceed  with  your  business.  If  I  interpret  that 
decision  rightly,  it  is  to  this  effect :  You  are  to  complete  your 
work  on  the  basis  of  deciding  upon  the  physical  and  economical 
advantges  of  our  cable  system.  If  there  are  any  law  questions 
involved,  that  may  prove  insurmountable  to  the  achievement  of 
that  system,  the  Court  will  determine  regarding  them.  This  seems 
to  be  the  sense  of  the  decision.  If  it  be  so,  you  are  to  go  on  and 
decide  on  the  questions  of  physical  and  economical  advantages 
about  our  system.  I  may  say  farther,  the  Court  is  a  great  one. 
No  human  tongue  or  pen — no  human  thought  has  ever  questioned 
its  ability  or  its  integrity,  nor  its  sagacity,  nor  its  careful  apprecia- 
tion of  any  suitor  that  was  ever  before  it.  Do  you  suppose  for 
one  instant  that  such  a  court  would  allow  a  grave  and  expensive 
proceeding  like  this  to  go  on,  if  it  had  serious  doubt  about  its 
legality  ? 

It  is  proper  that  I  should  state  to  you  that  every  conceivable 
objection  urged  here  was  urged  before  that  Court.  The  Court 
knows  those  objections  and  has  measured  them.  If  they  have  con- 
spicuous force,  would  not  the  Court  have  detected  it ;  and  would 
not  that  great  Court  have  consigned  us  to  a  final  rest  ?  Some 
graveyard  where  one  little  tomb  would  bear  this  inscription  : 

"  If  I  was  so  soon  done  for, 
What  was  I  begun  for  V " 

The  cry  is  to  stop  us.  That's  the  horse  railroad  cry.  They 
wanted  to  stop  the  Mayor's  Rapid  Transit  Commission  who  begun 


60 


us ;  they  did  interfere  and  they  worked  it  up  to  such  certain 
extent,  that  they  got  new  Commissioners.  They  wanted 
to  stop  us  at  the  door  of  the  Legislature.  Hence  section  16  of 
the  Act  of  1884.  They  have  tried  to  stop  us  in  the  courts,  and 
they  dread  nothing  so  much  as  they  do  to  have  this  thing  pro- 
ceeded with.  They  know  the  inevitable  doom  of  the  horse  rail 
road  interest  if  we  do  succeed.  This  is  confirmed  by  the  facts 
before  you.  They  know  they  must  be  brought  to  the  transfer 
system,  to  the  cable  system,  to  a  surrender  of  these  independent 
short  routes  for  a  five-cent  fare,  and  to  the  merging  of  the  wl^ole 
of  their  interests  into  a  grand  system  for  only  a  five-cent  fare. 
They  want  it  stopped.  They  want  to  stop  you,  and  tried  to  stop 
you  the  other  day  in  the  General  Term,  and  the  General  Term 
did  not  stop  you,  and  the  General  Term  never  will  stop  you. 

Now,  they  have  had  all  their  questions  before  the  Court.  Yes, 
five  times  it  has  been  before  the  General  Term  of  the  Supreme 
Court,  from  which  you  get  your  appointments.  The  fullest  and 
ablest  exposition  of  all  objections,  including  Mr.  Justice  Daly's 
objections,  and  every  other  objection  that  could  be  urged  were 
presented  on  a  brief  prepared  by  John  M.  Scribner  and  undoubt- 
edly revised  by  Mr.  Trull.  They  were  heard  at  the  General 
Term,  and  thereupon  this  Commission  was  appointed.  Now 
they  want  it  stopped — stopped  here. 

Permit  me  to  say : 

"  No  rogue  e'er  felt  the  halter  draw 
With  good  opinion  of  the  law." 

They  submit  these  questions  to  you  for  confusion.  They 
expect  to  confuse  you  so  that  you  will  not  submit  these  law  ques- 
tions to  the  General  Term.  If  they  can  huggermugger  so  far  as 
the  report  of  this  Commission  is  concerned  with  the  blandish- 
ments of  my  delightful  friend  Mr.  Trull,  they  may  be  saved ;  but 
when  you  have  made  your  report,  if  favorable,  they  will  not  be 
at  the  General  Term  with  these  stale  objections  to  oppose,  but 
they  will  take  their'  boodle  men  and  hie  them  to  the  Aldermanic 
Chamber  and  there  they  will  "  paint  an  inch  thick."  "  Stop 
it,  gentlemen  of  the  Board  of  Aldermen,"  they  will  say. 
"  Here  is  our  money.     Stop  it  some  way  and  never  let  it 


61 


get  into  court" — that  is  their  argument.  Now,  to  show  you 
if  we  do  get  into  court  what  will  be  the  outcome.  If  there  is 
anything  fundamental  in  this  Rapid  Transit  Act  that  may  be 
called  its  operative  and  necessary  clauses,  it  is  those  clauses  that 
fix  the  period  of  time  within  which  certain  things  should  be  done. 
Within  fifteen  days,  as  the  act  provides,  Commissioners  must 
organize ;  within  thirty  days  from  organization  they  must  declare 
the  necessity  for  the  routes ;  within  sixty  days  they  must  lay  out 
routes ;  within  ninety  days  they  must  decide  upon  their  plans ; 
within  one  hundred  and  twenty  days  they  must  make  their 
articles  of  association.  The  words  are  mandatory  to  do  those 
things.  But  the  Elevated  Railroad  Commission  did  not  do 
the  sixty-day  thing.  The  sixty  days  elapsed  without  certain 
necessary  applications,  and  Mr.  Parsons  in  arguing  that  objec- 
tion, was  met  with  this  decisive  reply  from  the  General 
Term.  In  the  opinion  of  Mr.  Justice  Daniels  occur  these 
words:  "The  Act  of  1875  does  not  require  that  the 
"  consent  rendered  essential  by  the  statute,  or  the  report  of 
"  the  commissioners  appointed  by  the  General  Term,  and  con- 
"  firmed  by  the  court  should  be  secured  within  sixty  days. 
"  The  statute  requires  simply  that  the  commissioners  should, 
"  within  sixty  days  after  their  organization,  fix  and  deter- 
"  mine  the  route  or  routes  for  such  steam  railway  or  rail- 
"  ways  "  (Laws  of  1875,  chap.  606,  sections  4  and  38).  "  In 
"  any  event"  said  the  learned  Judge,  "  the  time  within  which  a 
"  public  act  is  required  to  be  performed  is  not  mandatory,  but 
"  directory,  a  literal  observance  of  the  direction  as  to  time  is  not 
"  indispensable  to  the  validity  of  the  act.'' 

The  Chairman — What  authority  do  you  refer  to  ? 

Mr.  Shaw — I  refer  to  7th  Hun,  p.  241.  By  a  public  statute 
which  the  Rapid  Transit  Act  was,  and  is,  unless  there  are  special 
clauses  that  are  of  the  very  essence  of  the  act,  and  which  direct 
its  movement  and  which  are  declared  to  be  by  the  statute  itself 
the  very  essence  of  the  statute,  all  those  incidents  and  conditions 
are  called  directory.  I  one  day  carefully  enumerated  all  the 
things  that  should  be  done  under  the  Rapid  Transit  Act  and  J 
found  that  there  were  one  hundred  and  eleven  stated,  specific 


62 


things  to  be  done  under  that  act.  According  to  the  interpreta- 
tion of  our  friends  here,  if  every  one  of  those  one  hundred  and 
eleven  things  were  not  done  in  the  precise  manner  indicated  and 
prescribed  by  the  statute,  according  to  the  most  strict  construc- 
tion, that  would,  on  any  view  the  Court  might  take  of  the  statute, 
vitiate  the  whole  proceedings.  Now  that  thing  in  the  Elevated 
Railroad  case  was  not  done  within  the  sixty  days,  as  prescribed  by 
the  statute,  and  this  authority  of  the  7th  Hun  there  shows  it. 

The  provision  in  Section  4  of  the  Rapid  Transit  Act,  that  a 
certain  thing  should  be  done  within  sixty  days,  the  Court  treats 
as  not  having  been  done.  I  don't  know  whether  it  was  done  or 
not.  I  do  know  that  we  did  that  same  thing  within  sixty 
days.  We  felt,  if  we  had  not  done  it,  that  there  might  be  a 
defect  in  our  corporate  capacity,  but  we  did  do  it.  We  never 
ventured  upon  any  such  departure  as- this  opinion  condones. 

Now  consider  this.  The  Statute  said  that  a  thing  should  be 
done  within  sixty  days.  This  decision  of  Judge  Daniels  deals 
with  the  question  as  though  it  were  not  done  within  sixty  days. 
Yet,  Mr.  Justice  Daniels,  speaking  for  the  General  Term,  said 
that  this  sixty-day  matter  was  merely  directory. 

If  your  Honors  care  to  pursue  the  inquiry,  you  can  read 
from  page  368  to  381  of  Sedgwick  on  Cons,  and  Stat.  Law. 
There  you  will  find  the  whole  law  declared.  But  it  goes  so  far, 
and  so  much  further  in  this  State  as  to  excite  even  the  comment 
of  this  great  elementary  writer.  On  page  377  he  says  "I  may 
"  here  notice  that  this  same  principle  has  been  applied  to  the 
"  interpretation  of  constitutions.  The  Constitution  of  New  York 
"  provides  in  regard  to  all  laws  that  the  question  upon  their  final 
"  passage  shall  be  taken  immediately  upon  the  last  reading  and 
"  the  ayes  and  noes  entered  in  the  journal  (Cons.  Article  III., 
"  sect.  15,)  it  has  been  held  in  regard  to  this  provision  with  what, 
"  I  say  it  in  all  deference,  appears  to  me  an  extreme  laxness,  that 
"  it  is  merely  directory  and  that  the  disregard  of  it  would  have 
"  no  effect  upon  the  lawP 

The  cases  of  departure  in  England  from  mandates  upon 
municipal  bodies — positive  mandates  of  Parliament — are  com- 
mented on  in  this  work,  and  it  is  shown  that  where  a  public 
statute  is  administered  by  public  officers  for  a  public  service  the 


63 


end  in  view  is  the  principal  matter,  and  that  any  departure,  even 
from  mandatory  features  in  the  statute  is  to  be  disregarded.  The 
object  and  purpose  of  the  statute  which  is  to  remedy  a  public 
mischief  or  promote  a  public  service  must  be  effectuated,  if  it 
takes  all  the  king's  horses  and  all  the  king's  men  to  force  the 
judiciary  to  do  it.  That  disposes  of  the  law  and  all  legal  embar- 
rassment about  our  questions  here. 

Now  that  disposes  of  the  question  of  time,  and  this  argument 
I  have  just  addressed  to  you  was  the  argument  addressed  to  the 
General  Term  of  the  Supreme  Court  on  the  only  serious  question 
our  opponents  can  make,  in  answer  to  the  decision  and  opinion 
of  Mr.  Justice  Daniels. 

Mr.  Trull — If  I  understand  your  contention  you  had  more 
than  sixty  days,  and  if  that  be  so,  how  did  you  happen  to  advise 
Mr.  Randolph,  Mr.  Devoe  and  Mr.  Hedden,  that  they  could  not 
change  the  route  after  the  time  had  expired. 

Mr.  Shaw — For  the  reason  that  when  your  horse-railroad 
people  changed  the  Commission  I  ceased  to  be  their  adviser  ;  I 
retired. 

The  Chairman — Is  there  not  a  better  answer  ? 

Mr.  Shaw — Yes  ;  there  is  a  far  better  answer.  I  might  well 
make  it,  but  I  choose  to  state  here  that  I  did  not  advise  the 
reconstructed  Commission.  "  It  is  long  to  state  but  not  hard  to 
tell."    I  did  not  advise  them,  so  much  for  the  question  of  time. 

Now,  a  word  further  on  this  subject  of  plans,  somehow  or 
other  it  escaped  my  attention  at  the  time  I  was  commenting  upon 
that  criticism.  They  cited  Mr.  Justice  Daniels'  opinion  that 
came  down  the  other  day  on  the  motion  about  the  Boulevard  Route. 
That  there  was  a  defect  for  the  want  of  plans.  That  same  Jus- 
tice who  wrote  that  opinion  on  the  Elevated  Railway  case,  has 
recently  said  that  the  "  irregularities  and  omissions  "  in  following 
the  statutes — I  speak  of  the  application  of  Mr.  Sharp's  Broad- 
way railroad — could  be  very  well  disregarded  ;  and  there  were 
two  fundamental  irregularities  and  omissions  in  Mr.  Sharp's 
matter.  They  were  these  :  A  notice  to  the  property-owners  was 
prescribed  definitely  by  the  Statute,  that  they  desired  their  con- 


64 


sent  or  refusal  for  the  road,  Mr.  Sharp,  failed  to  give  notice. 
This  was  an  irregularity,  an  omission  touching  the  very  life  of 
Jacob  Sharp's  railroad,  and  will,  undoubtedly,  unless  some  legis- 
lation can  cure  it,  destroy  his  franchise,  as  a  report  from  your 
Commission  will  destroy  Mr.  Conover's.  We  mean  war.  We 
mean  that  these  people  shall  know  that  their  securities  have  got 
the  taint,  the  seed  of  death  in  them.  Mr.  Conover  has  no  right 
to  be  selling  his  bonds  and  distributing  his  stock  to  widows  and 
orphans,  nor  has  Jacob  Sharp  to  be  distributing  his  to  widows 
and  orphans  with  this  taint  upon  them,  and  this  danger  of  their 
destruction,  utter  worthlessness  staring  them  in  the  face.  Bom- 
bard my  finances  as  these  objectors  may,  I  bombard  theirs,  and 
with  such  righteous  reason  and  such  indisputable  law  that  I  can  say 
that  I  would  not  give  that  (snapping  his  fingers)  for  the  intrinsic 
value  of  a  dollar  of  Conover  security,  because  we  have  a  right  in 
that  road. 

Another,  and  the  second  irregularity,  relates  to  an  omission  to 
protect  the  City.  It  is,  in  substance,  Mr.  Wickes'  objection 
against  us  here,  that  the  City  has  not  been  adequately  provided 
for.  The  Court  quieted  its  conscience  on  that  question  by  accept- 
ing a  stipulation  between  the  Counsel  to  the  Corporation  and 
Jacob  Sharp.  That  stipulation  reconciled  the  Court  to  an 
approval  of  Mr.  Sharp's  scheme,  on  the  broad  principle  that 
technical  irregularities  and  omissions  in  a  matter  relating  to 
public  services,  ought  to  have  no  weight  with  the  Court. 

But  what  are  we  to  infer  from  the  fact  that  such  a  stipulation 
was  made  between  the  Corporation  Counsel  and  Jacob  Sharp  ? 
Don't  it  help  us  to  know  that  the  Corporation  Counsel  is  here  in 
the  interest  of  Jacob  Sharp  ? 

Now,  these  are  all  the  criticisms  made  upon  us.  I  have 
reviewed  them  one  by  one,  and  I  have  incidentally  argued  all  in 
this  case  that  rests  upon  them.  The  whole  claque  against  us  is 
an  organized  claque.  It  is  as  thoroughly  Frenchy  in  its  methods 
of  operation  as  anything  that  occurs  in  a  Parisian  theatre. 
They  are  in  the  Fifth  avenue  Hotel,  in  the  Hoffman  House,  in  the 
Brunswick,  in  all  the  bar-rooms,  around  the  courts,  nursing  this 
doubt  about  the  validity  of  our  charter,  and  it  reminds  me, 
when  I  hear  some  of  the  lawyers  that  are  engaged  in  disseminat- 


65 


ing  this  opinion,  of  what  I  used  to  encounter  in  my  early  days 
when  I  was  called  a  politician.  I  was  an  abolitionist  ;  I  was  an 
anti-slavery  man.  I  would  meet  some  red -mouthed  Irishman  who 
would  tell  me  that  this  whole  abolition  business  was  entirely 
unconstitutional ;  that  it  was  against  the  principles  of  Democracy. 
The  lowest  gamin  that  aped  democracy  thought  it  was  all  uncon- 
stitutional, and  this  claque  has  spread  throughout  the  town  that 
our  cable  road  charter  is  unconstitutional,  illegal,  null  and  void. 

Mr.  Wheeler  dealt  with  the  questions  as  to  the  necessity  of 
railways  on  all  our  routes.  He  showed  you  the  feasibility  of 
cable  roads  for  such  routes.  He  was  disputed.  Our  routes  were 
denounced  as  unnecessary  and  useless,  and  destructive  to  prop- 
erty. Our  overwhelming  testimony  was  to  the  effect  that  where- 
ever  a  horse  railroad  might  be  useful  a  cable  road  would  be  far 
.  more  useful.  When  these  horse-railroad  objectors,  right  in  the 
heat  of  this  debate,  went  and  tiled  on  all  our  routes,  the  William 
Street  Route,  the  Wall  Street  Route,  the  Broad  Street  Route, 
the  Cortlandt  Street  Route,  the  Liberty  Street  Route,  the  Lex- 
ington Avenue  Route,  they  entered  a  cognovit.  There  they  are, 
stripped  and  powerless  to  make  objection.  They  admit  the  desira- 
blity  and  feasibility  of  horse  roads  on  these  streets.  You  know 
that  cable  roads  would  be  far  preferable. 

I  want  to  leave  this  as  a  controlling  lodgment  in  your  minds,  and, 
for  I  see  many  reporters  here  I  want  to  throw,  as  far  as  the  press 
can  carry  it,  the  challenge  that  such  objections  as  have  been  made 
against  us  are  objections  that  were  raised  against  the  Elevated 
Railroad  Companies,  and  which  were  overruled  by  the  Courts. 
They  have  been  rehabilitated  and  taken  from  their  graves.  These 
objections  were  disposed  of  and  consigned  to  their  tombs 
eternally,  and  yet  they  have  been  brought  here  and  renewed 
against  us  in  order  to  produce  a  distrust  in  the  public  mind  that 
some  how  or  other  there  was  an  illegality  of  some  sort  some- 
where that  made  our  charter  invalid. 

Mr.  Wickes — May  I  ask  a  question  ;  have  you  omitted  or  do 
you  intend  further  on  to  give  us  the  history  of  the  Second  Ave- 
nue Railroad  case  ? 

Mr.  Shaw — This  is  my  brief,  and  you  may  read  it  yourself. 
5 


66 


I  am  speaking  from  it  (handing  brief  to  Mr.  Wickes).  Mr.  Wickes, 
requested  to  know  what  was  the  outcome  of  the  suit  that  this 
company  brought  against  the  Second  Avenue  Railroad. 

The  Chairman — Is  it  reported  ? 

Mr.  Shaw — No,  sir ;  the  Second  Avenue  Railroad  Company 
obtained  the  consent  of  property-owners  on  First  avenue  for  an 
extension  of  their  line  on  First  avenue  under  this  act  of  1884,  a  route 
of  ours,  and  they  also  obtained  the  consent  of  the  local  authorities, 
the  Board  of  Aldermen,  that  they  might  build  them.  That  hap- 
pened to  be  one  of  the  lines  that  the  Cable  Rapid  Transit  Commis- 
sioners had  assigned  to  us  first.  We  claimed  we  had  exclusive 
authority  to  build  on  that  line,  and  we  having  paid  the  expenses  of 
that  Commission  held  proprietary  rights.  That  was  our  position, 
andfto  prevent  that  corporation  from  building  on  our  lines  we  com- 
menced an  action,  and  applied  for  an  injunction  in  the  Supreme 
Court,  which  Vas  granted  to  us  by  Mr.  Justice  Donohue.  That 
case  was  argued  before  Mr.  Justice  Donohue  by  Mr.  Evarts  and 
Mr.  Sewell  on  our  behalf.  Mr.  Scribner — I  do  not  know  whether 
Mr.  Trull  considered  himself  in  the  case — took  an  active  part  in  it? 
in  conjunction  with  Mr.  Hutchins,  and  generally  the  horse- 
railroad  array  of  both  Sharp  and  Conover.  General  Wingate,  I 
know,  did  a  good  deal  of  talking  with  the  Justice,  who  after- 
wards heard  that  case.  The  whole  case  was  discussed.  Mr. 
Evarts'  argument  lasted  some  three  hours  and  a  half  ;  the  discus- 
sion went  through  two  days ;  and  you  will  find  the  question  of 
"time" — the  question  made  by  Judge  Daly  in  the  Court  of 
Common  Pleas  was  argued ;  and  after  considerable  deliberation, 
Mr.  Justice  Donohue  upheld  the  injunction;  but  he  compelled  us 
to  go  to  the  General  Term,  and  to  take  a  short  notice,  so  that  if  the 
Second  Avenue  Railroad  Company  felt  aggrieved  they  could 
have  an  early  hearing  at  the  General  Term  on  appeal. 

I  may  say  that  the  condition  of  the  Second  Avenue  Company 
at  the  time  the  injunction  was  granted  was  this  :  they  had  about 
twenty  blocks  torn  up ;  they  had  three  or  four  thousand  Italians 
employed  ;  they  were  under  very  large  obligations  ;  we  assisted 
them  to  a  speedy  hearing  ;  this  was  given  and  the  case  was 
argued  at  the  General  Term  with  all  the  expedition  that  I  could 


67 


aid  in  giving.  Mr.  Evarts  argued  it  for  us  and  Mr.  Hutching, 
reinforced  by  Judge  Joseph  F.  Daly's  opinion,  which  he  quoted 
and  presented,  argued  against  us  ;  I  had  taken  like  proceedings 
in  the  Common  Pleas  against  my  friend  Mr.  Trull's  Conover 
railroad  on  the  ground  that  we  had  the  exclusive  right  to  Forty- 
second  street ;  and  Mr.  Trull  made  quick  work,  so  quick  work 
that  he  was  able  to  have  the  opinion  of  Judge  Daly  before  the 
General  Term  of  the  Supreme  Court,  from  which  you  derive  your 
appointment  when  Mr.  Hutchins  and  Mr.  Scribner  argued  all 
these  questions  there.  Our  corporate  capacity  was  challenged  ; 
our  plans  were  challenged  ;  our  time  for  constructing  roads  was 
challenged — everything  was  challenged  that  has  been  exhibited 
here,  except  that  single  question  presented  by  Mr.  Wickes  about 
our  liability  to  forfeiture  to  the  city  in  case  we  were  not  required 
by  our  Articles  of  Association  to  do  every  act  and  thing  to  the 
very  letter.  Ridicule  is  no  name  for  the  answer  that  was  made  to 
this  objection. 

There,  again,  the  General  Term  heard  all  this  story  of  objec- 
tions. Fully  a  whole  day  it  was  argued  pro  and  con  and  we  were 
looking  with  great  expectancy  for  an  opinion  to  be  handed  down 
when  the  Court  should  meet.  I  could  get  no  intimation  of  what 
the  decision  was  to  be,  and  one  morning  I  was  visited  by 
Mr.  Hutchins,  the  counsel  for  the  Second  Avenue  Railroad  Com- 
pany, who  said,  "  I  would  like  to  withdraw  that  appeal  from 
Judge  Donohue's  decision  before  the  opinion  of  the  General 
Term  is  handed  down.''  I  said  to  him,  "  What  will  you  give  ? 
He  said,  "  I  will  pay  all  the  expenses  and  your  costs,  amounting 
to  some  thousands  of  dollars ;  "  and  he  paid  it,  I  wrote  a  letter 
for  him  to  the  Chief  Justice  to  ask  to  have  the  appeal  dismissed. 
He  further  gave  me  a  stipulation  that  the  injunction  of  Judge 
Donohue  might  stand,  with  the  modification  that  I  put  that  he 
might  use  the  street  that  he  had  torn  up  and  that  his  work  might 
remain  until  such  time  as  the  king  came  to  claim  his  own.  That 
is  the  history  and  that  is  the  way  that  appeal  was  withdrawn. 
I  moved  then  for  the  appointment  of  this  Commission  and  to  sav 
that  our  application  was  fraud  on  the  Court  is  the  height  of  impu- 
dence. 


68 


The  Chairman — Did  Judge  Donohue  give  you  an  order 
upholding  the  injunction  as  modified  ? 

Mr.  Shaw — Yes,  sir ;  of  course  he  did  ;  how  could  he  do 
otherwise  when  the  General  Term  omitted  to  say,  on  application 
of  my  adversary,  it  had  no  views  opposed  to  his  '(  I  suspect  the 
truth  to  be  that  Mr.  Hutchins  then  knew  what  the  opinion  of  the 
General  Term  was ;  indeed,  I  think  he  saw  it ;  he  knew  it  was 
his  destruction. 

The  Chairman — Is  there  any  dispute  between  you  gentlemen 

.as  to  the  facts? 

Mr.  Shaw — Mr.  Trull  and  the  other  gentlemen  are  thoroughly 
informed  about  it. 

Mr.  Wickes — I  never  heard  there  was  any  opinion  written  by 
the  General  Term. 

The  Chairman — We  have  no  right  to  consider  that  in  any 
way ;  I  want  to  know  if  there  is  any  question  of  fact  between 
you  gentlemen.  , 

Mr  Wickes  —  The  Second  Avenue  Railroad  Company,  in 
spite  of  the  injunction,  are  running  their  cars  to-day  over  that 
route. 

Mr.  Shaw — Over  the  districts  and  the  routes  allowed  them  ;  if 
they  have  gone  one  foot  beyond  what  I  allowed  them  I  will  bring 
them  up  for  contempt  of  court. 

Mr.  Trull — That  includes  the  whole  route. 

Mr.  Shaw — No  ;  it  does  not. 

Mr.  Trull— Mr.  Shaw  has  got  his  stipulation ;  but  Mr. 
Hutchins  does  not  make  so  favorable  a  statement  as  Mr.  Shaw 
does  for  himself. 

Mr.  Shaw — Mr  Hutchins  withdrew  his  appeal,  and  he  paid 
me  thousands  of  dollars  to  modify  Judge  Donohue's  injunction, 
so  that  the  work  he  had  done  might  be  saved  ;  for  he  suggested 
to  me,  "  after  all,  you  may  not  get  it,  and  we  want  to  save,"  said 
he,  "  what  we  have  done  ;  we  want  it  if  you  can't  have  it."  Mr. 
Sharp  and  others  were  asking  for  the  same  route  at  that  time. 


69 


Mr.  Wickes — 1  should  like  to  see  very  much  the  modifica- 
tion of  the  injunction  to  which  Mr.  Shaw  consented. 

The  Chairman — It  is  safe  to  assume  that  he  did  not  consent 
to  very  much. 

Mr.  Shaw — Now,  I  am  going,  in  order  to  give  complete 
illustration  of  this  whole  business,  to  read  the  complaint  in  that 
case.    The  complaint  is  as  follows  : 

(Here  Mr.  Shaw  read  the  complaint.) 

I  want  to  show  that,  in  our  complaint,  we  brought  home  all 
these  questions,  all  these  acts  and  doings  that  have  been  introduced 
to  confuse  counsel  here  ;  and  the  Court  was  asked  to  make  a  full 
disposition  of  the  matters  stated  in  our  complaint. 

Now,  after  we  had  gotten  all  those  rights  which  were  consum- 
mated by  our  Articles  of  Association,  on  the  22d  day  of  April, 
1884,  the  the  Act  of  1884  was  passed  ;  as  of  the  date — and  no 
other  date — of  May  6,  1884.  We  claim,  that  having  paid  for  this 
exclusive  right  to  our  location,  it  was  not  competent  for  the  local 
authorities,  or  anybody,  to  allow  somebody  to  slip  in  and  compete 
with  us  for  any  of  those  routes,  and  get  consents  from  local  authori- 
ties or  property-owners  to  take  them.  We  had  the  first  right  to 
ask  for  consents,  and  until  that  right  was  exhausted,  and  until  we 
were  refused  them,  that  right  must  be  held  in  abeyance  ;  and  the 
result  of  that  was  that  we  had  our  injunction.  It  is  subsisting 
now  in  a  modified  form  by  stipulations  between  us  which  are 
perfectly  satisfactory  to  me,  as  spokesman  for  our  corporation. 
The  case  I  made  was  sustained  by  Judge  Donohue ;  it  was 
argued  elaborately,  and  then  appealed  to  the  General  Term  of  the 
Supreme  Court,  and  after  it  was  submitted  the  counsel  for  the 
Second  Avenue  Railroad  Company  came  to  me  and  asked  to 
withdraw  his  appeal,  and  I  permitted  him  to  do  so  on  payment 
of  money,  and  on  stipulations  which  allowed  him  to  save  the 
work  he  had  done,  and  a  little  more.  I  got  that  money  and 
turned  it  over  to  our  corporation.  Our  corporation  knew  where 
it  came  from,  and,  by  my  advice,  took  it  and  has  used  it  for  cor- 
porate purposes. 

Mr.  V.  Maksh — The  General  Term  since  then  has  decided 
the  Boulevard  case. 


70 


Mr.  Shaw — I  am  glad  you  called  my  attention  to  that.  Under 
the  rules  of  this  Commission,  we  were  to  close  our  proofs  within 
a  limited  time.  We  appeared  before  the  General  Term  and 
made  no  objection  to  Mr.  Deering's  motion  as  to  the  Boulevard- 
Let  the  Boulevardists  go  on,  but  I  must  say  this  :  Mr.  Sewell  made 
the  intimation  before  the  General  Term  on  that  motion,  that  it 
would  be  proper  to  suspend  argument  and  decision  in  this  matter 
until  after  the  report  of  your  Commission.  Mr.  Sewell  under- 
stood the  Court  to  assent  to  that  proposition.  There  was  no 
brief,  nothing,  and  I  was  much  surprised  at  the  decision  con- 
fronting us  from  that  Court.  Mr.  Deering  pursued  the  matter 
while  Mr.  Sewell  was  resting  in  confidence  upon  the  disposition 
of  the  case  in  the  way  that  he  had  suggested.  We  did  not  pay 
any  more  attention  to  it.  While  we  are  seeking  to  have  the 
Boulevard  route,  we  do  not  care  much  about  it. 

The  Chairman — Who  gave  the  prevailing  opinion  in  the 
Boulevard  case  ? 

Mr.  Shaw — Mr.  Justice  Daniels  wrote  the  opinion  and  he  put 
it  upon  two  grounds  :  One  ground  was  that  our  plans  were  in- 
definite. On  this  ground  the  other  justices  did  not  concur.  So 
you  see  that  the  Court  was  not  against  us  on  the  matter  of  plans. 

Respecting  plans,  I  have  exhibited  the  Cable  Railways  of 
San  Francisco  and  Chicago  as  a  practical  model.  The  Court  did 
not  have  this  fact  before  it.  The  Court  had  no  fact  before  it. 
Mr.  Sewell  must  have  been  tremendously  deceived  about  the 
intimations  of  the  Court.  Had  he  not  been  so  deceived,  do  you 
suppose  we  would  not  have  had  a  brief  there — a  brief  that  would 
have  met  all  this  question  ?  Why,  let  me  give  you  the  brief  we 
made  when  subsequently  the  matter  was  brought  before  the  Gen- 
eral Term.  I  give  it  to  you  from  the  brief  made  to  correct  this 
thing.    I  have  the  brief  in  my  hand.    From  it  I  read  as  follows  : 

"  Additional  Point  by  Messrs.  Sewell  &  Shaw. 

' '  The  decision  in  the  Boulevard  motion  in  this  matter  is  no  precedent. 
That  motion  was  not  contested.    It  was  simply  submitted  with  an  affidavit 
showing  that  the  Court's  Commissioners  were  about  closing  the  hearing  before 
them,  and  the  suggestion  was  made  by  petitioners'  counsel  that  it  lay  over  and 
be  considered  when  the  Commissioners'  report  should  be  presented  to  the  Court. 


71 


There  was  no  argument,  no  brief,  no  opposition,  no  submission  of  any  question 
on  the  part  of  the  petitioner,  except  the  suggestion  and  application  supported  by 
an  affidavit  drawn  pointedly  for  the  purpose,  that  the  motion  lay  over  to  be 
considered  later  on  when  the  Commissioners'  report  should  be  laid  before  the 
Court.  The  proofs  that  would  accompany  that  report  were  relied  upon  to  meet 
the  questions  raised  on  that  motion.  If  the  petitioners'  counsel  (the  undersigned) 
erred  in  supposing  that  this  was  the  natural  and  proper  disposition  of  the 
motion,  the  motion  must  be  considered  as  taken  by  default  and  the  opinions 
handed  down,  as  given  in  the  absence  of  a  contention,  although  petitioner 
intended  and  expected  to  make  a  contention  at  a  time  that  its  counsel  supposed 
was  especially  suitable  and  agreeable  to  the  Court.  It  can  hardly  be  questioned 
that  the  motion  might,  at  the  time  and  under  the  circumstances  shown  by  affi- 
davit, be  fairly  regarded  as  premature,  and  that  was  all  petitioners'  counsel 
sought  to  submit  for  the  consideration  of  the  Court.  It  is  respectfully  submitted 
that  the  present  motions  are  in  the  same  category.  It  is  further  submitted  that 
the  argument  on  these  motions  should  be  regarded  as  a  rehearing,  if  not  the 
original  and  only  hearing  of  the  Boulevard  motion. 

"The  opinions  of  the  Court  on  that  motion  should,  under  the  circum- 
stances, be  tabula  rasa.  Until  the  present  term  of  the  Court  expires,  the  Boule- 
vard motion  may  be  reheard  on  a  proper  application.  Such  application  will  be 
made  and  a  resettlement  of  the  order  entered  will  be  prayed. 

' '  Robert  Sewell, 
"  Ch.  P.  Shaw.  " 

Other  questions  are  considered  in  our  brief  we  made,  respon- 
sive to  this  recent  application  of  our  opponents  to  the  Court. 
Among  those  questions  are  questions  concerning  our  plans.  This 
is  what  we  replied  : 

"So  far  as  the  alleged  indefiniteness  of  the  specification  is  concerned,  the 
plans  are  quite  as  specific  as  those  of  the  New  York  Elevated  Railroad,  which 
were  approved  by  the  Court.  There  must,  as  the  General  Term  said  in  that 
case,  be  '  some  flexibility '  in  these  respects.  It  is  not  to  be  expected  that  work- 
ing drawings  should  be  made  by  the  Commissioners. 

"There  can  be  no  more  definite  description  of  a  surface  cable  road  than  that 
given  in  our  Articles  of  Association,  namely,  according  to  the  most  approved 
plan  of  cable  traction  as  operated  in  San  Francisco  and  Chicago.  The  cable 
roads  of  those  cities  are  of  world-wide  reputation  and  may  be  considered  as  a 
conspicuous  working  model  for  this  company.  This  method  of  description 
has  been  sanctioned  by  the  Legislature  in  the  charters  of  nearly  all  our  Horse 
railroads,  which  are  required  to  be  built  '  according  to  the  most  approved  plan 
*  of  Horse  street  railroads.'  " 

Ex  pede  Herculem.  If  such  a  question  as  this  was  discussed 
before  the  General  Term,  from  whom  you  derive  your  authority, 
have  you  any  suspicion  that  all  the  other  questions  that  are 


brought  here  were  not  discussed  ?  I  challenge  this  whole  array  of 
opposition  to  say  if  they  have  any  new  question — any  question 
that  they  have  not  already  carried  to  the  Court.  I  know  they 
have  no  question,  and  they  know  they  have  no  question  that  has 
not  already  been  considered. 

The  Chairman — You  just  now  stated  that  Mr.  Justice  Daniels 
based  his  opinion  in  the  Boulevard  case  on  two  grounds,  one  of 
which  related  to  plans.    What  was  the  other  ground  ? 

Mr.  Shaw — That  we  had  not  given  sufficient  evidence  that 
we  had  statutory  refusals  of  the  property-owners,  so  that  it  was 
not  competent  for  the  Court  to  grant  the  appointment  of  com- 
missioners. 

On  this  ground  we  were  not  heard.  If  a  great  Court  like  the 
General  Term  of  the  Supreme  Court  can  lay  us  by  the  heels 
without  hearing  us,  why,  what  can  we  say  ?  We  can  only  say 
that  if  we  misunderstood  the  Court  about  a  hearing,  which  we 
supposed  was  to  be  postponed,  we  ought  not  to  be  pierced  to 
destruction  and  death  in  an  interlocutory  way.  That  Court,  or 
any  other  Court,  ought  not  to  call  stare  decisis  on  us,  so  long  as 
the  questions  before  it  may  be  ultimately  reviewed  by  it.  The 
Court  is  too  great  a  one  to  say  that  it  will  rush  to  decision  with- 
out a  hearing.  ~No  hearing  was  had.  The  Court  knows  now  that 
we  expected  that  all  questions  would  be  deferred  until  the  report 
of  your  Commission  came  in.  We  did  not  expect  snap  judgment 
without  debate  on  what  we  regarded  as  a  frivolous,  interlocutory 
motion  should  be  had.  It  is  idle  to  suppose  that  we,  Mr.  Sewell 
representing  us,  would  allow  decision  on  all  our  questions  without 
discussion.  Who  can  say — who  ought  to  say — that  such  a  little 
motion  as  Mr.  Deering  made  about  the  Boulevard,  decided  with- 
out debate,  when  we  all  supposed  that  it  would  be  deferred  for 
argument  until  your  report  should  be  presented,  should  work  the 
destruction  of  our  whole  system.  The  moment  we  heard  of  it,  the 
thoughts  of  our  counsel  were  turned  to  the  great  question,  Is  it 
possible  that  this  beneficent  scheme  of  intramural  transit  is  to  be 
ruined  by  a  bit  of  practice  ?  Is  it  to  be  taken  by  default  ?  Is  it 
to  be  lost  because  our  counselor  misunderstood  the  Court  on  a 
trivial  matter  ?    It  seems  to  me  improbable.    Mr.  Sewell  under- 


73 


stood  the  Court  to  say,  on  an  affidavit  presented  by  him,  that  the 
Court  would  suspend  judgment  until  your  report  came  in.  But 
judgment  distanced  his  expectations  while  we  were  in  the  midst 
of  our  labors  with  you.  Is  such  a  pitfall  to  attend  every  public 
enterprise?  If  this  be  law,  and  I  suppose  it  may  be,  think  of  it 
and  mourn  over  it.  I  can  afford  to  go  down.  Can  the  public's 
downfall  be  so  easily  atoned  (    It's  a  horrible  thought. 

Well,  let  us  fall.  If  the  judiciary  want  to  destroy  us,  we  must 
accept  the  situation.  ~No  thought  must  be  entertained  as  to  the 
purity  of  the  motive.  I  think  I  see  all  the  motives  that  made 
our  Code  of  Procedure  in  the  light  it  was  made.  If  ancient  nuis- 
ances which  codifiers  have  tried  to  destrov  still  exist,  and  such 
public  services  as  we  propose  must  be  destroyed  by  them,  I  must 
accept  the  situation,  though  I  know,  as  absolutely  as  human  per- 
ception can  know,  that  the  Code  was  not  intended  to  permit  it, 
and  the  law  never  contemplated  it.  My  span  of  life  is  brief,  but 
any  attempt  to  reintroduce  into  our  jurisprudence  effete  things 
that  we  had  fondly  hoped  had  gone  and  gone  forever,  amazes  me. 
How  grand  was  Mansfield,  by  whom  slavery  was  abolished  in 
England  forever  !  He  had  no  Code  of  Practice  to  restrain  him 
from  making  that  great  judgment.  He  did  it  on  law — pure  law- 
Are  there  not  a  thousand  precedents  in  our  own  great  Supreme 
Court  that  tread  upon  feeble  technicalities  ?  What  Judge  has 
done  more  in  this  very  matter  of  our  city  transit  to  stamp  upon 
and  disregard  irregularities  in  proceedings  relating  to  such  public 
services  as  we  propose  than  our  most  approved  and  judicious 
Judge  Daniels.  The  precedents  of  his  making  are  numerous  and 
too  conspicuous  to  invite  question. 

So,  therefore,  when  Mr.  Coudert,  leading  the  array  of  opposi- 
tion, tells  you  that  the  opinion  of  Judge  Daniels  on  this  Boule- 
vard notion  is  a  plain,  clear,  irreversible  declaration  of  the  Gen- 
eral Term  that  the  Court  intends  to  destroy  us  on  technicalities, 
omissions  and  irregularities,  that  this  plain  purpose  appears  in 
Judge  Daniels'  opinion  on  a  motion  we  never  argued,  which  we 
understood  never  was  to  be  argued  until  your  final  report  came 
in,  and  which  was  taken  by  default,  I  say,  Mr.  Coudert  says  a 
preposterous  thing  and  casts  a  stigma  upon  the  consistency  and 
learning  of  the  great  Judge  that  he  has  harnessed  like  a  donkey 
to  the  jaunting-car  of  his  argument.    Absurd  ! 


74 


Now,  Mr.  Conover,  represented  by  my  friend  Mr.  Trull,  was 
in  the  same  category  as  the  Second  Avenue  Company  ;  he  had 
slipped  in  where  we  had  a  statutory  right  to  be.  He  slipped  in 
and  got  consents  from  the  local  authorities  and  commenced,  to 
build  his  road,  and  we  stopped  him  by  injunction.  The  result  of 
that  application  was,  that  Mr.  Justice  Daly  delivered  that  opinion 
in  which  he  substantially  declared  our  charter  invalid  for  the 
reason  that  a  definite  time  had  not  been  specified,  as  he  stated.  It 
was  too  fluctuating  for  the  building  of  our  road.  But  you  see 
how  much  attention  the  General  Term  of  the  Supreme  Court 
has  paid  to  that.  And  how,  under  the  general  authorities,  how 
foolish  and  childish  that  objection  was.  But  we  came  to  some 
agreement  before  getting  this  opinion,  and  Conover's  corporation 
gave  us  bonds  for  twenty -five  thousand  dollars  that  it  would  pay 
ns  any  damage  we  might  suffer,  provided  the  Court  should  ulti- 
mately give  us  the  right  to  it.  Of  course  we  shall  tear  up  their 
tracks  and  put  them  into  bankruptcy. 

I  have  here  my  argument  in  print  on  that  discussion  before 
the  Common  Pleas.  I  was  under  the  impression  that  I  ought  to 
read  it,  but  I  wont ;  I  will  submit  it. 

The  Chairman — I  suppose  you  ought  not  to  submit  it  to  us 
unless  you  do  read  it. 

Mr.  Shaw — I  suppose  the  Commission  won't  care  to  have  the 
whole  argument  read.  Why,  it  took  me  a  whole  day  to  make  it. 
But  there  are  some  pertinent  parts  of  it  which  I  should  like  to 
have  read — the  parts  that  show  that  all  these  more  pronounced 
questions  we  have  been  discussing  here  were  discussed  before  the 
Court.  That  will  assist  the  movement  of  the  argument  I  am  now 
making,  as  well  as  supply  evidence. 

Chairman  Pelton — We  do  not  intend  to  compel  you  to  read 
that  whole  argument.  But,  of  course,  we  want  to  know  the  per- 
tinent parts  of  it. 

Mr.  Shaw — Grant  me  a  moment  to  mark  such  portions  as  1 
propose  to  have  read. 

(Here  portions  of  the  argument  were  read,  as  follows,  by  Mr. 
Shaw's  associate). 


75 


"Now  our  case  is  this  :  Prior  to  1875  the  people  of  the  State  of 
New  York  claimed,  held  and  reserved  in  full  proprietorship,  .a 
title  to  all  the  streets  of  this  city.  They  could  dispose  of  such 
streets  for  purposes  of  public  transit,  absolutely  and  unqualifiedly 
to  any  party  whether  person  or  corporation,  they  might 
choose  by  act  of  the  Legislature.  I  will  not  elaborate  this 
proposition.  I  only  wish  to  notify  the  respondents'  counsel  that 
we  rely  upon  this  proposition  as  settled  law,  so  that  he  may 
not  be  unadvised  as  to  one  of  the  main  grounds  of  our  conten- 
tion, and  answer  it  as  best  he  may.  I  therefore  say  to  him,  prior 
to  1875,  there  existed  in  the  Legislature  an  unqualified,  exclusive 
and  absolute  power,  without  let  or  hindrance  from  the  local 
authorities  or  abutting  owners,  to  authorize  railroads  to  be  built 
in  any  street  of  this  city.  This  is  the  doctrine  of  the  case  of  The 
People  vs.  Kerr,  27  IS".  Y.  P.,  188.  That  doctrine  stood  unques- 
tioned, clear  and  plain,  within  the  knowledge  of  everybody  who 
had  or  has  any  interest  in  the  horse  railroad  corporations  in 
this  city  until  January  1,  1875,  when  the  Constitutional  Amend- 
ment relating  to  the  subject  went  into  effect.  Without  throwing 
any  particular  reflections  upon  anybody,  it  is  proper  to  say,  that  a 
condition  of  things  arose  by  which  the  people  of  the  State 
thought  that  their  Legislature  was  endowed  with  too  wide  a 
power  over  the  subject  of  city  transit.  In  fact,  some  scandal  arose 
about  the  Legislature  at  Albany  granting  railroad  franchises  to 
individuals  and  corporations  in  the  City  of  New  York  ;  and  hence, 
as  we  all  know,  the  Constitutional  Amendment  of  1875  was  passed. 
Bv  that  Amendment  it  was  provided  that  if  anv  further  transit 
franchises  should  be  granted  by  the  Legislature  for  the  City  of 
New  York,  or  any  other  city  or  village  of  the  State,  such  grants 
should  be  made  under  general  laws,  with  the  approval  of  the  local 
authorities  and  of  the  abutting  owners ;  but  in  case  the  abutting 
owners  should  not  approve,  the  General  Term  of  the  Supreme 
Court  might  deal  with  and  dispose  of  the  question  in  its  absolute 
discretion,  after  proper  inquiry,  so  far  as  the  abutting  owners 
might  be  concerned.  Your  Honors  will  observe  that  there  was 
no  proprietary  right  of  the  people  remitted  or  released  by  this 
Constitutional  Amendment.  Nothing  was.  granted,  given  up,  or 
in  any  way  waived  in  the  nature  of  a  proprietary  right,  to  the 


76 


abutting  owners  or  to  the  local  authorities.  The  whole  motive 
o£  the  amendment  was,  as  we  all  know,  to  deprive  the  Legislature 
of  the  unqualified  power  of  making  grants  of  these  franchises, 
except  by  requiring  some  condition  of  assent  on  the  part  of  the 
abutting  owners,  or  in  lieu  thereof  the  determination  of  the  Gen- 
eral Term  of  the  Supreme  Court,  and  also  of  the  local  authorities. 
These  assents  were  required  only  to  prevent  improvident  grants 
by  the  Legislature.  They  were  not  required,  because  it  was 
thought  that  the  abutting  oivners  or  the  local  authorities  had 
any  proprietary  right  in  the  premises.  The  Constitutional 
Amendment  never  disturbed,  and  never  was  intended  to  disturb, 
the  proprietary  right  of  the  people  of  the  State.  The  consent  of 
the  abutting  owners,  or  in  lieu  thereof  the  determination  of  the 
Supreme  Court  and  the  consent  of  the  local  authorities  were 
merely  consents  required  in  the  course  of  administration,  and 
may  be  called  merely  administrative  consents — that  is  to  say,  it 
was  thought  that  such  parties  might  be  a  safe  resort  through 
which  to  ascertain,  as  the  Legislature  could  not  well  do,  whether 
or  not  a  particular  railroad  should  be  built.  But,  as  I  have  said 
before,  no  proprietary  right  was  granted  or  intended  to  be 
granted  to  the  abutting  owners  or  to  the  Supreme  Court,  or  to 
the  local  authorities  ;  that  right  belonged,  as  it  did  before  the 
Constitutional  Amendment,  in  the  people  of  the  State  of  New 
York.  It  was  a  right  which  the  people  reserved,  and  which  the 
Legislature  could  grant  away,  subject  to  the  consent  of  the  local 
authorities  and  abutting  owners,  just  as  unqualifiedly  subject  to 
such  consents,  as  it  could  do  before  the  Constitutional  Amend- 
ment was  adopted.  But  it  rested  with  the  Legislature  to  say 
in  what  manner,  and  on  what  considerations,  terms  and  conditions, 
and  by  what  processes  such  consents  might  be  asked  for,  and 
who  might  ask  for  them.  The  power  was  left  with  the  Legisla- 
ture to  say  that  nobody  should  ask  for  them  except,  in  a  certain 
way,  and  by  doing  certain  things,  and  after  certain  steps  had 
been  taken ;  and  it  had  a  right  to  say  that  after  certain  proceed- 
ings had  been  taken  that  a  c'ertain  party  should  have  the  exclu- 
sive right  to  ask  for,  and  obtain  the  consents  of  the  local  authori- 
ties and  the  abutting  oivners,  or  the  determination  of  the  General 
Term  of  the  Supreme  Court ;  and  it  had  a  bight  to  say  that 


77 


NO  OTHER  PARTIES   SHOULD    HAVE  ANY    RIGHT    TO  ASK    FOR  SUCH 

consents.  It  also  had  a  right  to  say  that  inducements  might  be 
offered  to  parties  on  expedient  terms  and  conditions,  whereby 
such  parties  might  alone  be  clothed  with  the  right  to  ask  for  and 
obtain  such  consents,  and  "thus  complete  a  right  to  transit  fran- 
chises in  this  or  any  other  city  of  the  State.  All  this  power  the 
Legislature  exercised  in  the  Rapid  Transit  Act  (chap.  606,  Laws 
1875).  Mr.  Tilden  was  then  Governor  of  this  State.  The  Con- 
stitutional Amendment,  and  all  the  motives  to  be  worked  out  by 
it,  were  then  fresh  and  familiar. 

"  Under  this  act  the  New  York  Cable  Railway  Company  de- 
rives its  right — its  sole  and  exclusive  right — to  ask  for  and  obtain 
the  consent  of  the  local  authorities  and  the  abutting  owners,  or 
in  lieu  of  such  owners'  consent,  the  determination  of  the  General 
Term  of  the  Supreme  Court. 

"  Now,  on  the  threshhold  of  this  contention,  I  notify  my  friend 
— the  enemy — that  he  never  had  the  right  to  ask  for  or  obtain 
the  consent  of  the  local  authorities  or  abutting  owners  to  the 
locus  in  quo  for  a  railroad  as  against  our  corporation,  for  the 
reason  that  we  took  the  offer  of  the  State  to  give  us,  on  terms 
and  conditions  for  which  we  paid,  the  sole  and  exclusive  right  to 
apply  for  and  obtain  such  consents.  And  that  whatever  he  may 
claim  or  has  acquired  in  that  direction  is  as  though  he  had  bar- 
gained with  the  idle  wind. 

"  Before  proceeding  further  with  this  branch  of  my  opening, 
I  wish  to  throw  out  another  suggestion  for  my  friend  to  meet ;  it 
is  this :  we  have  the  PROPRIETARY  right  of  the  people  of  the 
State  in  reversion  and  remainder,  if  we  choose  to  accept  it,  after 
having  obtained  the  consents  of  the  abutting  owners  and  local 
authorities.  And  it  so  happens  that  there  is  another  party  inter- 
ested in  our  endeavors  and  concerned  very  materially  in  our  suc- 
cess ;  that  party  is  the  City  and  County  of  New  York.  That 
interest  arises  under  §  7  of  this  Eapid  Transit  Act  of  1875.  By 
that  section  it  will  be  perceived  if  we  do  get  the  consents  of  the 
local  authorities  and  property  owners  and  fail  to  build  all  the 
roads  our  system  calls  for,  the  city  may  own  the  franchise  for 
any  unbuilt  portion  assigned  to  us  as  property  in  perpetuity — 
that  is,  the  proprietary  right  of  the  State  and  all  other  rights 


78 


gained  by  these  administrative  consents,  if  not  availed  of,  revert 
to  the  Supervisors  of  the  County  of  New  York.  The  Supervisors 
of  the  County  of  New  York  being  the  Board  of  Aldermen  of  the 
city.  (Counsel  here  quoted  in  full  §  7  of  the  Rapid  Transit  Act.) 
In  this  view  of  the  case  there  might  well  be  another  party  at  my 
side  here  to-day — the  Counsel  to  the  Corporation  of  the  City  of 
New  York  might  well  be  here.  We  have  not  invited  him.  He 
has  no  notice  of  the  broad  question  so  deeply  concerning  the  city's 
rights.  But,  he  might  well  be  here,  because  the  rights  we  own,, 
if  wre  do  not  fulfill  under  them,  and  perform  every  condition,  as 
our  charter  requires,  revert  to  the  city  as  remainderman  as  to  the 
unfilled  part ;  in  that  relation  the  authorities  are  not  few  nor 
conflicting.  If  it  be  as  we  claim,  that  we  alone  or  rather  we  first, 
have  a  right  to  seek  and  obtain  consents  to  build  a  road,  the  City 
and  County  of  New  York  as  remainderman  may  well  watch  with 
deep  interest  our  proceedings.  The  great  equity  rule  that  protects 
prospective  or  remotely  contingent  rights  of  a  child  in  the  womb, 
or  any  conditional  interest  of  the  remainderman  to  an  estate,  is  a 
very  important  matter  to  the  City  of  New  York ;  for  it  involves 
an  absolute  proprietary  right  to  our  rights  in  case  we  fail  to  avail 
ourselves  of  them  or  any  portion  of  them.  In  short,  we  have  the 
State's  proprietary  right  now,  the  Mayor's  Commissioners  gave 
us  that,  and  when  we  get  the  consents  of  the  local  authorities 
and  property-owners,  we  have  every  right,  and  if  we  do  not  avail 
ourselves  of  such  right,  the  city  owns  as  remainderman. 

"  This  condition  of  things  was  thoroughly  apprehended  by  the 
Rapid  Transit  Commissioners  appointed  by  Mayor  Edson  last 
November,  and  in  granting  to  the  plaintiff  corporation  the  rights 
now  claimed  by  them,  they  well  understood  the  nature  of  the 
powers  they  were  exercising  ;  they  knew  that  they  had  a  right  to 
grant  the  proprietary  right  of  the  State,  subject  to  the  consent  of  the 
local  authorities  and  abutting  property-owners,  to  the  routes  fixed 
and  determined  by  them.  They  knew,  that  subject  to  such  con- 
sents, their  power  gave  them  authority  to  authorize  a  railway  or 
railways,  or  a  system  of  railways,  to  be  operated  by  steam  power 
or  any  other  power,  except  animal  (§  26,  sub.  4,  chap.  606  Laws 
1875),  "  over,  under,  through,  or  across  "  any  street  or  avenue  of 
the  city  except  such  as  were  prohibited  by  the  Rapid  Transit 


79 


Act.  Their  attention  bad  been  called  to  tbe  great  modern  im- 
provement in  city  transit  known  as  tbe  cable  railway — its  suc- 
cess in  San  Francisco  and  Chicago  had  demonstrated  that  animal 
power  must  go ;  that  all  convenient  routes  adapted  to  the  cable 
plan  ought  to  be  availed  of  immediately.  They  entered  upon 
their  duties  impressed  with  the  fact  that  there  was  then  no  law  on 
the  statute  book  which  would  authorize  a  street  railroad  of  any 
description  in  this  city  or  any  city  or  village  of  this  State  except 
under  the  Rapid  Transit  Act ;  that  act  was  passed  June  18, 1875, 
and  it  was  the  only  act  on  the  statute  book  whereby  any  street 
railroad  could  be  authorized  for  any  city  or  village  of  this  State. 
Eight  years  had  elapsed  from  the  Constitutional  Amendment 
of  1875,  and  from  the  passage  of  that  act,  and  though  the  Legis- 
lature had  been  importuned,  as  we  all  know,  at  each  annual  ses- 
sion, for  some  act  that  would  grant  away  by  some  other  than 
the  Rapid  Transit  Act,  the  proprietary  right  of  the  State,  subject 
to  the  consents  of  the  local  authorities  and  abutting  owners, 
still  the  Legislature  refused  such  an  act.  All  this  matter 
of  intramural  transit,  except  under  the  Rapid  Transit  Act, 
was  at  a  standstill.  Our  city  was  growing — our  neighboring 
cities  were  growing.  No  man  could  say  when  the  Legislature,  so 
persistently  importuned  and  so  persistently  refusing,  would  grant 
an  act  to  give  any  authority  for  street  railroad  transit  except  by 
the  Rapid  Transit  Act.  In  this  condition  of  things  it  was  found 
that  that  act,  already  upon  the  statute  book,  was  adequate  to  all 
the  needs  of  intramural  transit  in  this  city.  Invention,  since 
that  act  was  passed,  fulfilling  its  great  office  as  the  tenth  muse 
—had  demonstrated  that  cable  roads  could  best  afford  intramural 
transit  in  this  city.  This  act  was  therefore  invoked  to  do  the 
duty  and  meet  the  requirements  of  the  public  service  in  this 
matter  of  transit  for  this  city.  The  man  who  knows  anything 
valuable  to  know  of  the  matter  does  not  exist,  who  is  bold  enough 
to  say  that  the  cable  system  is  not  in  every  respect  superior  to 
the  animal  power  system.  It  gives  speed  without  danger.  It 
gives  a  constant  service  irrespective  of  snow  and  ice.  It  gives 
unlimited  supply  of  transit  facilities  on  any  given  route.  It  fails 
neither  in  summer  heat  nor  winter  frost.  Storms  of  snow,  wind, 
or  rain  cannot  retard  or  prevail  against  its  uniform  and  steady 


80 


service.    The  sanitary  considerations  involved  in  its  substitution 
for  animal  power,  distinguish  health  from  pestilence.    These  are 
but  few  of  its  immense  advantages.    To  be  brief,  I  am  justified 
in  saying  that  the  invention  of  cable  roads  is  an  invention  of 
enormous  public  beneficence.    This  is  enough  to  say  here  and 
now  of  the  merits  of  that  system  of  city  transit.    Of  course,  it 
commended  itself  to  those  of  our  citizens  who  were  interested  in 
the  subject.    Meetings  of  property-owners  were  held.  Lawyers 
were  consulted.    The  subject  was  examined  and  it  was  found 
that  the  Rapid  Transit  Act  of  1875  was  adequate  to  give  full 
authority  to  build  cable  roads,  whether  elevated,  surface  or  under- 
ground, or  partly  of  each  of  these  kinds  of  roads  in  combination, 
on  many  convenient  streets  and  avenues  of  the  city,  and  to  provide 
sl  comprehensive  system  of  such  roads  in  this  city.  Property- 
owners  and  capitalists  were  quick  to  take  advantage  of  the  cable 
invention,  and  of  the  statute  which  could  provide  franchises  for 
its  introduction.    Out  of  their  appreciation  of  the  subject  has 
grown  The  New  York  Cable  Railway  Company.    As  a  result  of 
this  appreciation,  city  taxpayers  presented  a  petition,  duly  sworn 
before  a  Justice  of  the  Supreme  Court  of  this  judicial  district, 
to  Mayor  Edson  in  November,  1883,  asking  for  the  appointment 
of  Commissioners  to  do  and  perform  the  services  required  under 
the  Rapid  Transit  Act.    The  petition  was  signed  by  116  property- 
owners,  representing  as  is  said  upwards  of  300  millions  of  taxable 
property  in  the  city.    It  was  a  strong  appeal — an  appeal  by  our 
most  prominent  and  wealthy  citizens,  for  a  system  of  surface 
cable  roads  under  the  Rapid  Transit  Act.    In  that  petition  was 
set  forth  the  merits  of  the  cable  railroad.    The  petitioners  indi- 
cated in  their  petition  that  a  system  of  cable  roads  was  requisite 
— a  system  that  involved  transfer  tickets,  so  that  for  a  five-cent 
fare  a  passenger  could  ride  all  over  it,  whatever  might  be  its 
extent,  and  wherever  it  might  go,  up-town,  down-town,  or  across 
town.    This  was  the  controling  thought  of  the  petition.  Of 
course,  if  the  fare  was  limited  to  five  cents,  the  extension  of  the 
system  to  thirty,  forty,  fifty,  sixty  or  eighty  miles  means  a 
dilution  of  the  monopoly  in  the  ratio  of  its  extension.  That 
was  the  theory  of  the  Commissioners,  and  this  is  the  nature 
of  the  beneficent  monopoly  we  are  contending  for.    But  whether 


81 


our  mileage  be  great  or  little  cuts  no  figure  here,  as  a  matter  of 
law.  Yet,  when  presented,  as  it  has  been  presented,  in  the  news- 
papers and  elsewhere,  and  may  be  flourished  by  counsel  before 
your  Honors,  I  wish  to  submit  against  all  that  ad  captandum 
this  one  suggestion  :  Should  the  extent  of  our  mileage  unfriendly 
govern  the  notion  to  be  entertained  of  our  monopoly,  provided 
we  are  compelled  to  carry  passengers  over  all  our  system  for  a- 
five-cent  fare  ?  Would  not  our  monopoly  be  really  larger  and 
more  burdensome  to  the  public,  if  for  that  fare  we  had  only  one 
mile,  or  five  miles  of  road  ?  Manifestly,  extension  is  synonymous 
with  dilution,  as  long  as  our  fare  is  fixed  at  five  cents.  In  other 
words,  the  larger  our  mileage  the  less  is  our  monopoly.  This 
must  answer  all  that  is  flourished  and  flouted  in  our  faces  by 
zealous  advocates  as  to  our  overshadowing  monopoly  of  routes. 

■ '  But  this  matter  of  the  extent  and  number  of  our  routes  is  a 
matter  with  which  the  Court  is  not  called  upon  to  deal.  I  speak 
of  it  because  so  much  has  been  said  and  printed  about  it  to  our 
disparagement.  It  is  said  we  have  twenty-nine  routes  ;  that  the 
mileage  of  these  routes  covers  anywhere  from  seventy  to  one 
hundred  miles  of  street.  If  that  be  so  it  must  not  be  forgotten 
that  a  five-cent  fare  can  command  a  ride  over  all  of  it.  Our 
critics  are  horse  railroad  people  who  do  not  give,  and  never  have 
proposed  to  give,  and  will  never  give,  any  approach  to  such  a 
mileage  for  such  a  fare.  The  system  of  transfer  tickets,  so  that 
at  convenient  points  passengers  without  additional  fare  may  go 
up,  down,  and  across  the  city,  never  can  be  a  feature  of  the  present 
horse  railroad  system  of  the  city.  Our  system  is  set  forth  in  this 
map  I  hold  in  my  hand.  It  is  drawn  on  a  large  scale  ;  I  will  hand 
it  up  for  the  inspection  of  the  court.  (Mr.  Shaw  handed  up  the 
map.)  On  this  map  your  Honors  will  find  what  our  system  em- 
braces ;  you  will  from  it  see  the  grasp  taken  of  the  subject  by 
the  Rapid  Transit  Commissioners;  you  will  see  the  mileage 
they  give  for  a  five-cent  fare.  The  conception  of  the  commis- 
sioners as  shown  by  this  map  is  a  grand  one — I  will  say  a  bene- 
ficent one.  Now  this  is  the  system  we  are  contending  for. 
This  appeal  has  been  taken  because  it  had  to  be  taken,  nolens 
volens,  to  save  that  system.  This  contention  is  solely  to  save 
that  system.  Our  client  is  but  a  corporation.  It  is  not  supposed 
6 


82 


to  have  reasoning  capacity,  conscience  or  soul.  The  good  and 
honest  people  who  embarked  in  it  found  its  corporate  powers 
launched.  They  are  not  responsible  for  the  magnitude  of  the 
system.  Its  magnitude  is  a  burden  upon  the  franchise.  Less 
♦extent  of  road  for  the  same  fare  would  have  been  a  more  profitable 
franchise.  The  Rapid  Transit  Commissioners  created  it,  and 
launched  the  corporation  to  bring  it  into  operation.  They  created 
that  corporation  in  the  exercise  of  lawful  powers  and  invited  the 
public  to  take  stock  in  it,  to  take  'advantage  of  its  franchises, 
to  assume  its  burdens,  and  to  realize  from  it  all  the  legitimate 
profits  it  could  afford.  We  think,  and  I  trust  the  court  may  be 
convinced,  that  the  commissioners  build ed  wisely,  grandly,  and 
beneficently  in  the  interest  of  a  public  use,  but  whatever  may  be 
the  view  of  the  court  as  to  the  merits  of  the  scheme  of  the 
commissioners  no  man  or  set  of  men,  no  corporation  or  combin- 
ation of  corporate  interests,  can  be  allowed  to  infringe  with 
impunity  upon  the  franchises  bought  and  paid  for  by  our  cor- 
porators.   Yes,  the  solid  cash  was  paid. 

"  1  now  come  to  another  proposition  which  I  wish  my  learned 
adversary  to  note,  for  on  it  rests  the  superstructure  of  our  right. 
If  this  proposition  fails,  all  we  contend  for  falls ;  but  if  it  be 
sound,  then  nothing  can  prevail  against  us.  That  proposition  is 
this  :  The  corporation  the  Mayor's  Commissioners  gave  us  was 
a  franchise,  granted  as  by  an  immediate  and  direct  act  of  the 
Legislature  itself.  It  was  a  franchise  as  direct  from  the  Legis- 
lature as  though  in  the  exercise  of  all  the  sovereign  power  of 
the  people  of  this  State,  the  Legislature  had  competently  and 
within  strict  constitutional  limits  presently  and  perfectly  conferred 
it  and  it  had  been  enrolled  as  statute  law  in  the  statute  book, 
passed  as  of  the  day  when  the  Commissioners  took  our  money  and 
pledged  to  us  without  reservation,  qualification  or  quibble,  all  we 
bought  and  paid  for.  We  stand  on  that  proposition.  It  is  not 
original ;  nor  is  it  new.  The  Court  of  Appeals  propounded  and 
declared  it  several  years  ago.  The  Commissioners  comprehended 
this  situation.  The  subscriptions  to  the  capital  stock  of  the 
corporation  they  created  were  based  upon  it.  The  occasion  for 
the  determination  of  the  Court  of  Appeals  arose  on  the  construc- 
tion of  the  powers  of  Rapid  Transit  Commissioners  when  the 


83 


validity  of  the  charter  similar  Commissioners  gave  our  elevated 
railroads,  was  questioned,  as  they  are  being  questioned  here  : 
The  Court  said  :  "  Corporations  organized  under  the  act  derive 
"  their  franchise  from  the  Legislature,  and  in  no  proper  sense 
"  from  the  Commissioners.  The  Commissioners  perform  no 
"legislative  acts;  they  enact  no  laws;  they  simply  perform 
"  administrative  acts  in  carrying  the  law  into  effect  and  apply- 
"  ing  it."  (3  Abb.  new  cases,  page  414.)  This  settles  the  nature 
of  our  charter.  Whoever  attacks  it  must  attack  the  sovereign 
power  of  the  State  of  New  York.  They  must  attack  more. 
They  must  attack  the  sovereign  power  of  the  whole  people  of 
the  United  States — for  it  is  of  the  nature  of  our  constitution  of 
government  that  National  authority  shall  hold  every  State  Gov- 
ernment to  such  an  observance  of  its  contracts  that  they  cannot 
be  impaired. 

"Now  let  us  see  what  was  this  power  of  these  Commissioners. 
Here  is  the  Rapid  Transit  Act  and  all  amendments  (counsel 
handed  to  the  Court  copies  of  the  document).  This  is  how  the 
original  act  opens  as  to  the  powers  of  the  Commissioners.  You 
will  find  it  in  the  first  section  (Chapter  606,  Laws  1875) :  "Five 
Commissioners  who  shall  have  full  power  and  authority  to 
do  and  provide  all  that  they  are  hereinafter  directed  to 
do  and  provide.''  This  is  the  exordium  of  the  act.  It  is  the 
swelling  prologue  to  the  imperial  theme.  What  immediately 
follows  in  the  act  I  pass  by,  to  call  attention  to  section  five. 
Your  Honors  will  there  fine!  a  direct  bid,  placed  by  the  people  of 
the  State  in  the  hands  of  the  Commissioners,  to  give  inducements 
for  investors  to  come  into  our  scheme  of  transit  (counsel  read 
the  section).  What  can  such  a  statute  be  called  but  a  statute  of 
powers  and  duties  on  the  part  of  the  Commissioners  and  a  statute 
of  inducements  to  those  who  might  rely  on  what  the  Commis- 
sioners, in  the  name  of,  and  as  the  sovereign  power  of  the  people 
of  the  State,  might  offer?  The  Commissioners  made  an  offer. 
It  is  formulated  in  our  articles  of  association,  which  are  the 
charter  of  the  plaintiff  corporation.  Now  let  us  stop  here.  Above 
and  beyond  all  debate  we  accepted  the  inducements  and  paid 
for  and  took  the  charter  tendered  us  by  the  Commissioners. 
That  is  clear.    This  appeal  is  brought  to  decide  what  we  got  by 


84 

that  charter.  It  is  brought  to  decide  the  principle  of  the  thing. 
In  this  light  I  am  offering  all  I  have  said  and  all  I  shall  have 
to  say.  It  seems  by  the  opinion  of  the  Hon.  Judge  in  the  Court 
below,  who  dissolved  the  injunction  order  from  which  this  appeal 
is  taken,  that  we  have  not  a  right  to  our  injunction,  because, 
among  other  things,  the  Commissioners  failed  to  give  us  a  valid 
charter.  This  appeal  would  probably  never  have  been  taken 
but  for  that  judicial  expression.  It  is  taken  chiefly  to  correct 
such  a  view.  I  must  deal  with  it.  Here  is,  as  against  the 
respondent,  our  chief  contention  ;  but  being  brought  into  it,  we 
must  and  do  claim  an  exclusive  right  to  the  Locus  in  quo,  as  our 
sole  and  exclusive  right  for  street  surface  transit.  Our  stipu- 
lations in  the  papers  waive  nothing  as  to  ultimate  right  on  the 
route  in  question.  We  took  Mr.  Trull's  client's  bond  and  let  it 
go  on ;  but  we  intend  to  enforce  its  exclusion  from  the  route  in 
question  unless  convenient  arrangements  for  common  use  of  the 
street  can  be  made  with  it  for  the  accommodation  of  our  system 
of  intramural  transit.  This  is  notice  enough  on  that  subject  to 
my  learned  friend. 

"  What  I  have  said,  I  think,  fairly  generalizes  for  the  purposes 
of  an  opening  our  main  propositions,  so  that  our  adversary  in 
his  reply  may  not  claim  that  he  was  unadvised  of  the  scope  of  our 
views. 

"  I  wish  now  to  be  more  particular : 

"  First — I  again  call  the  Court's  attention  to  the  controling  fact 
that  at  the  time  the  New  York  Cable  Railway  Company  obtained 
its  charter  there  was  no  other  law  on  the  statute  book  by  which 
street  surface  transit  conld  be  acquired.  The  Commissioners 
entered  upon  their  duties  November  30,  1883.  They  steadily 
pursued  their  work  and  completed  their  labors,  and  completed 
our  charter  April  22,  1884.  This  was  not  a  day  sooner  nor  a 
day  later  than  they  were  called  upon  to  perform  their  duties  by 
the  act  Within  ten  days  after  their  appointment,  the  Com- 
missioners were  to  take  oath  of  office,  and  give  bonds  to  the 
people  of  the  State  for  faithful  performance  of  duties ;  within 
fifteeii  days  after  appointment,  they  were  to  organize  as  a  Board, 
with  appropriate  officers ;  within  tliirty  days  after  organization 


85 


they  were  to  determine  if  there  was  necessity  for  further 
railways ;  within  sixty  days  thereafter  they  were  to  fix  and 
determine  the  route  or  routes  of  such  railways  as  should  be 
built ;  within  ninety  days  after  organization  they  were  to  propose 
"  inducements  "  such  as  to  them  might  "  seem  most  expedient  " 
by  such  public  notices  as  they  might  "  deem  most  proper  and 
effective  "  to  induce  the  public  to  come  into  an  adventure  to  buy 
a  charter  for  the  construction  of  cable  railways  on  the  routes 
"  located,  fixed,  and  determined "  by  them,  which  adventure 
was  to  be  formulated  into  a  scheme  involving  the  incorporation 
of  a  company  with  a  definite  capital  stock  based  upon  the  right 
to  construct  cable  roads  on  certain  terms  and  conditions  on  these 
located,  fixed,  and  determined  routes,  as  and  for  franchises. 

"  Within  one  hundred  and  twenty  days  after  organization  the 
Commissioners  were  to  open  books  of  subscription  to  the  capital 
stock  pursuant  to  due  public  notice,  and  within  ten  days  there- 
after they  were  to  call  the  subscribers  together  for  organization 
as  corporators  to  choose  directors  and  officers  ;  within  ten  days 
after  election  of  directors  and  officers  they  were  to  grant  such 
a  certificate  to  the  directors  and  officers  as  would  enable  them  to 
assert  corporate  powers  and  rights,  and  thus  command  a  right  to 
the  franchises  intended  to  be  conferred  by  the  Commissioners, 
provided  the  directors  should  file  such  certificate,  with  an 
affidavit  prescribed  by  the  statute,  in  the  office  of  the  Secretary 
of  State  and  the  office  of  the  County  Clerk  of  this  county. 
There  is  no  question  but  that  such  certificate  and  affidavit  were 
duly  filed.  A  certified  copy  of  the  certificate  and  affidavit  from 
the  Secretary  of  State  must,  under  section  9  of  the  act,  be  held 
"  presumptive  evidence  of  the  incorporation  of  such  company 
and  of  the  facts  therein  stated*'  Such  certified  copy  is  in  our 
papers.  No  one  disputes  this.  Well,  then  :  We  are  a  corporation, 
and  our  charter  exists  in  our  articles  of  association,  which,  as  the 
act  provides,  the  Commissioners  were  required  to  hand  over  to 
us  after  paying  them  the  money  we  have  paid  them.  I  think 
that  is  enough  to  say  about  our  being  a  valid  corporation.  We 
present  the  certified  copies  from  the  Secretary  of  State.  There  is 
a  case  of  "  presumptive  evidence v  presented  here.  What  the 
Court  may  make  out  of  "presumptive  evidence"  in  such  a  case 


86 


as  this,  I  cannot  say ;  but  it  seems  to  me  that,  as  there  is  no  other 
evidence  in  the  case  we  should  stop  here.  If  no  other  witness 
comes  in,  "  presumptive  evidence  "  must  settle  our  status.  There 
is  and  can  be  no  other  witness  on  this  appeal.  But  we  do  not 
rest  our  right  on  this  as  a  mere  technical  ground.  Technical 
grounds  are  both  grand  and  mean  things.  It  is  the  office  of  a 
Court  possessing  both  law  and  equity  powers  to  do  the  grand 
thing,  and  eschew  the  mean — to  always  do  the  just  and  equitable 
thing.  The  broad  and  liberal  equity  powers  of  the  Court, 
reinforced  by  its  common  law  powers,  can  fulfill  all  the  wisdom 
and  purpose  of  a  public  statute,  framed  in  the  general  public 
interest,  as  the  Rapid  Transit  Act  is,  for  the  public  service,  in 
spite  of  technical  objections,  if  any  exist.  Hence,  if  it  be  per- 
mitted, as  the  respondent  claims,  to  go  behind  that  certificate  and 
affidavit  and  look  into  the  articles  of  association  which  the  Com- 
missioners gave  us  as  our  charter,  the  Court  will  say  that  any 
defect  found  therein  relating  to  mere  matter  of  form,  and  time, 
if  not  declared  to  be  of  the  essence  and  life  of  the  statute,  and 
which  are  not  essential  to  the  practical  realization  intended  by  it, 
will  be  disregarded.    But  I  shall  speak  of  this  later  on. 

"  I  wish  now  to  call  the  Court's  attention  to  a  certain  feature 
of  the  Commissioners'  proceedings.  It  will  be  observed,  if  the 
times — days — within  which  the  Commissioners  were  to  perform 
their  work  are  counted  up,  that  they  neither  hastened  nor  neglect- 
ed their  duties,  but  on  the  very  last  day  allowed  them  by  the 
statute,  they  completed  their  labors.  It  cannot,  therefore,  be  said 
that  they  ran  a  race  of  diligence  for  an  inning  on  these  franchises 
before  they  could  be  arrested  by  an  act  of  the  Legislature.  For 
it  is  too  notorious  to  be  ignored,  that  when,  by  the  public  pro- 
ceedings of  the  Commissioners,  and  the  clear  power  they  had 
over  the  subject  of  street  surface  railroad  transit,  the  horse  rail- 
road companies  of  the  city  and  every  franchise-hunter  that 
hungered  for  such  franchises,  saw  the  cable  system  in  the  field 
and,  exclusively  commanding  it  under  the  Rapid  Transit  Act  they 
betook  themselves  to  the  Albany  lobby  and  besieged  the  Legis- 
lature to  repeal  that  act  and  bring  to  naught  the  great  work  of 
the  Commissioners.  What  scandals  grew  out  of  their  frantic 
attempts  in  this  direction  need  not  be  referred  to.    The  guise 


87 


under  which  they  pushed  their  schemes  against  this  cable  system 
resulted  in  what  is  known  as  the  General  Street  Surface  Railroad 
Act,  under  which  respondent  claims,  which  is  chapter  252,  Laws 
of  1884.  The  crowning  fact  about  that  act,  so  far  as  our  case  is 
concerned,  is,  that  it  teas  not  passed  until  May  6,  1884. 

"  Whatever  right  we  had  was  acquired  and  paid  for  on  April  22, 
1884.  Now  let  it  stand  as  a  memorial  stone  in  this  case  that  the 
respon  dent  here  claims  one  of  the  routes  acquired  and  paid  for  by 
us,  April  22,  1884,  under  this  horse  railroad  lobby  act  of  May  6, 
1884.  There  we  stand  face  to  face  with  dates !  It  does  not  lie 
even  within  the  power  of  Omnipotence  to  make  April  22d  come 
after  May  6th.  This  fixes  our  vested  rights.  Our  brief  abounds 
in  authorities  and  gives  sufficient  details  to  cover  all  excuse  for 
not  pursuing  further  argument  on  this  question.  But  my  learned 
friend  will  contend  that  this  horse  railroad  lobby  act  did  not  fail  of 
its  mark.  He  will  admit  that  it  came  a  little  too  late  for  all  uses, 
but  that  when  it  did  come,  it  was  strong  enough  and  brought  with 
it  an  energy  that  can  double  discount  time  and  principle.  He 
will  speak  of  section  16,  providing  that  "  No  street  surface  railroad 
"  shall  be  constructed  to  run  in  whole  or  in  part  upon  the  surface 
"  of  any  street  or  highway,  under  the  authority  of  any  com- 
"  mission  appointed  under  the  provisions  of  chapter  606  of  the 
"  Laws  of  1875."  Of  course  that  provision  cannot  be  held  to 
relate  to  any  commission  which  had  already  acted — had  done  its 
appointed  work  and  vested  rights  in  pursuance  of  its  authority. 
This  section  could  not  have  meant  us ;  we  were  clear  and  out  of 
the  way  of  all  its  intendments  when  it  passed.  But  supposing 
we  were  meant,  ice  ivere  not  hit.  I  propose  to  be  bold  about 
this  matter.  I  say  the  Legislature  could  not  strike  us  down  by  a 
retroactive  measure.  Nothing  short  of  an  amendment  to  the  Con- 
stitution of  the  State  of  New  York,  and  the  Constitution  of  the 
United  States  could  bring  us  to  suffer  a  pang  from  this  provision, 
or  make  it  other  than  a  joy  to  us,  for  as  it  must  relate  to  hereafter 
commissions,  it  makes  a  monopoly  of  whatever  the  commission 
that  had  gone  before,  has  given  us.  We  accept  the  Bapid 
Transit  Act  of  1875,  as  modified  and  curtailed  bv  our  friends' 
horse  railroad  act  of  1884.  We  rejoice  that  it  has  been  so  modi- 
fied.   We  are  glad  that  no  more  commissions  may  be  created 


88 


under  it  to  grant  surface  roads  to  compete  with  ns.  Onr  brief 
clears  this  point  so  conclusively  that  we  have  only  gratifica- 
tion to  express  for  this  sixteenth  section  in  the  act  of  1884. 
The  water  that  once  grinds  shall  never  pass  the  wheel  again, 
expresses  not  only  the  poetry,  but  the  solemn  prose  of  our  rela- 
tion to  both  the  Act  of  1875  and  1884.  Lock  your  stables, 
gentlemen,  but  I  admonish  you  the  horse  is  gone  with  his  legiti- 
mate rider — not  stolen.  So  much  for  the  Albany  horse  railroad 
lobby.  But  I  cannot  part  with  it  yet.  I  must  detain  it  just  a 
moment  longer.  There  is  a  section  18,  in  this  great  act  of  1884, 
I  find  in  this  section  this  provision  :  "  Nothing  in  this  act  shall 
"  *  *  *  interfere  with  or  repeal  or  invalidate  any  rights 
"  heretofore  acquired  under  the  laws  of  this  State,  by  any  horse 
"  railroad  company,  or  affect  or  repeal  any  right  of  any  existing 
"  street  surface  railroad  company  to  construct,  extend,  operate  or 
"  maintain  its  road  in  acccordance  with  the  terms  and  provisions 
"  of  its  charter."  This  provision  brings  me  into  a  great  apprecia- 
tion of  the  Legislature.  It  is  a  Daniel  come  to  judgment.  Here 
we  have  it  set  down  as  statute  law,  that  there  are  horse  railroad 
companies  for  street  surface  service,  and  other  street  surface  rail- 
road companies  which  are  not  horse  railroad  companies.  All  are 
to  be  saved  and  excepted  from  the  operation  of  the  statute  of  1884, 
just  as  if  it  had  never  passed.  Where,  then,  are  we  ?  Look  at 
us.  We  are  the  only  thing  that  is  not  a  street  surface  horse 
railroad  company,  and  yet  we  are  a  street  surface  railroad  com- 
pany. Don't  we  come  within  this  saving  clause  %  Don't  it 
look  just  as  if  the  Legislature  intended  that  the  great  rights  we 
are  here  contending  for  should  be  saved  ?  On  the  face  of  the 
statute,  this  purpose  cannot  be  doubted.  There  we  must  rest 
our  argument.  Who  or  what  moved  the  Legislature  to  make 
such  a  provision,  we  would  not  question.  All  I  can  say,  there 
it  is,  and  we  come  within  the  category  of  surface  railroad  com- 
panies which  are  not  horse  railroad  companies.  Judicial  know- 
ledge may  or  may  not  know  absolute  verity.  But  I  venture 
the  suggestion,  from  a  careful  reading  of  the  section,  that  the 
provision  was  intended  to  save  all  vested  rights,  and  to  save 
them  in  such  manner  and  form  as  would  protect  the  franchises  of 
the  New  York  Cable  Railway  Company. 


V 


89 


"If  this  rendering  be  approved,  we  are  not  harmed,  but  pro- 
tected, by  the  Act  of  1884.  Nothing  more  need  be  urged  on  this 
subject ;  but  I  beg  permission  to  hand  up  to  the  Court  opinions 
on  the  point  which  have  been  given  my  client  by  those  eminent 
and  accomplished  lawyers  of  our  bar,  Mr.  Evarts  and  Mr.  Loomis. 
(Mr.  Shaw  handed  up  the  opinions.)  On  these  opinions,  and  the 
elucidation  of  the  question  presented  in  our  brief,  I  rely  with 
confidence. 

"  How,  then,  do  we  stand  ?  Manifestly,  the  proprietary  right 
of  the  State  to  the  routes  assigned  by  the  Commissioners  to  the 
Cable  Company  had  passed  out  of  the  State  to  that  company,  or 
was  held  in  abeyance  for  it  at  the  time  the  Act  of  1884  was 
passed. 

"  Those  routes,  therefore,  could  not  have  been  included  in  and 
did  not  come  under  the  operation  of  the  Act  of  1884.  Hence,  any 
consents  given  by  the  local  authorities  or  property-owners — 
consents  which  I  have  called  administrative,  as  they  imply  no  pro- 
prietary right — are  as  null  and  void  as  if  those  routes,  like  the  city 
parks,  had  been  by  express  provision  excluded  from  the  operation 
of  the  act,  or  as  if  the  act  had  never  passed.  If  this  be  so,  we  have 
a  right  to  the  injunction  we  ask,  because  the  pretenses  of  the  res- 
pondent company  are  a  slander  of  our  title,  and  a  pretense  of 
title  in  itself  to  the  proprietary  right  of  the  State  as  against  us. 
They  obstruct  us  in  getting  the  administrative  consents.  They 
are  a  declaration  of  a  right  to  build  on  our  routes  another  railroad, 
and  as  abutting  owners  do  not  want  two  railroads  in  front  of  their 
premises,  we  are  hindered  and  delayed. 

"  The  hardship  of  such  a  situation,  which  scheming  trespassers 
of  the  horse  railroad  variety  are  inflicting  on  us,  can  be  readily 
apprehended  by  the  Court. 

"  This  matter  of  our  exclusive  right,  we  do  not  deny,  largely 
depends  upon  physical  and,  I  may  say,  social  conditions,  as  well 
as  upon  our  contract  with  the  State  for  our  routes.  We  have 
the  first  right  to  ask  the  administrative  consents  to  build  a  road 
of  our  variety  on  the  street.  There  must  be  silence  for  a  space 
of  time  until  we  succeed  or  fail  to  get  such  consents.  All 
other  voices  or  supplications  must  be  hushed  until  our  appeal  is 
answered  or  denied,  if  we  pray  for  and  pursue  with  diligence 


90 


such  consents.  If  the  consents  be  given  us,  then  it  would  be 
fairly  open  to  anybody  else  to  ask  for  similar  consents,  subject 
to  our  first  choice  of  location,  for  another  road  on  the  same  street. 
For  example,  if  our  streets  were  adequate  for  several  separate  lines 
of  road,  and  the  local  authorities  or  abutting  owners,  whose  con- 
sents we  must  obtain,  entertained  no  prejudice  against  a  multi- 
plicity of  railroad  tracks  in  the  streets,  then  perhaps  we  could  not 
under  our  charter  claim  an  exclusive  right.  Then,  the  Court  might 
say,  perhaps,  that  there  is  room  enough  for  all — room  for  us  under 
the  Act  of  1875,  and  room  for  the  respondent  under  the  Act  of 
1884 — build  both  roads  and  run  them  in  generous  rivalrv  and  fair 
competition.  I  know  well  enough  that  the  Court  will  not  exert  its 
power  to  give  us  an  exclusive  right  expressly  to  save  us  from  com- 
petition. We  have  not,  nor  do  we  make,  any  such  claim  under 
our  contract  with  the  State.  The  State  has  never  yet  granted  any 
such  right,  and  if  it  had,  or  should,  the  Courts  would  laugh  it  to 
scorn.  Our  demand  for  an  injunction  is  not  put  on  any  such 
ground  as  that.  Our  ground  is  this :  The  streets  upon  which  our 
routes  are  located  are  manifestly  too  narrow  for  more  than  our 
tracks — other  tracks  would  encumber  the  streets  and  inconveni- 
ence the  use  of  them.  Perhaps  our  case  made  here  might  well 
have  set  forth  the  fact  that  the  local  authorities  and  abutting 
owners  object  to  more  than  one  railroad  on  the  streets  in  ques- 
tion, and  that  they  will  not  give  consents  for  both  our  road  and 
respondents'. 

"  But  this  is  so  obvious  that  judicial  knowledge  will  readily 
apprehend  it.  At  all  events,  we  rely  on  judicial  discernment  in 
this  aspect  of  our  case.  We  have  averred  in  our  complaint  this 
aspect  of  the  injury  to  us  from  the  respondent  seeking  and 
obtaining  these  consents  when  we  had  the  first  right  to  seek  and 
obtain  them.  We  paid  for  this  first  right.  We  bought  and  paid 
for  the  proprietary  right  of  the  State,  on  the  condition  that  we 
had  a  clear  and  exclusive  field  to  seek  for  and  obtain  these  consents, 
if  we  proceeded  with  diligence.    That  was  our  contract. 

"  The  Act  of  1884  was  not  then  passed.  Nowit  is  claimed  that 
the  Act  of  1884  put  the  respondent  in  such  a  position  as  to  give 
it  a  free  and  absolute  donation  of  the  proprietary  right  of  the 
State,  for  which  we  paid  large  money,  and  enabled  it  to  slip  in 


• 

91 


ahead  of  us  and  get  those  consents,  and  to  then  turn  around  and 
say,  "  Why,  there  is  room  but  for  one  road  here,"  and  thus 
intrigue  against  us  and  prevent  us  from  obtaining  the  necessary 
consents  to  complete  our  franchises.  In  other  words,  cut  and 
carve  as  we  will,  the  respondent  gets  what  we  bought  and  paid 
for. 

"  Xow,  against  this  we  take  our  stand.  "We  say  that  the  State 
was  in  honor  bound,  after  we  had  paid  money  for  our  charter, 
and  acquired  by  purchase  its  proprietary  right  to  the  routes  in 
question,  with  a  right  to  build  our  railway  on  it,  provided  we, 
acting  with  diligence,  should  obtain  these  administrative  consents, 
not  to  put  any  other  party  in  a  way,  by  a  gift  or  otherwise,  to 
obstruct  us  in  obtaining  such  consents,  and  thus  to  obtain  the 
same  thing.  This  is  what  we  protest  against.  The  transaction 
of  the  corporators  of  our  company  in  purchasing  their  charter 
was  a  transaction  between  business  men  and  the  State  in  its  sov- 
ereign capacity.  We  are  here  to  ask  the  Court  to  uphold  it* 
All  the  circumstances  surrounding  the  transaction  should  be 
•  regarded.  The  fact  that  at  the  time  the  State  could  not  have 
dealt  with  us  or  the  subject,  except  under  the  Rapid  Transit 
Act,  is  a  controlling  one.  The  barrier  to  any  other  authority 
dealing  with  the  matter  was  a  constitutional  one.  We  therefore 
claim  that  whatever  we  took  bv  our  contract  we  took  as  though 
no  other  statute  would  be  passed  to  our  prejudice,  so  far  as  con- 
cerned getting  the  administrative  consents.  There  was  no  under- 
standing imported  into  our  contract  that  the  Sfcate  might  by  some 
subsequent  legislation  give  the  same  right  to  another  which  it 
had  given  us,  or  make  our  enterprise  the  subject  of  common  spoil 
to  a  herd  of  franchise  hunters,  or  rather  franchise  jumpers,  who 
might  covet  what  we  had  acquired.  We  were  not  to  take 
chances  of  that  Rob  Roy  legislation,  which  allowed  us  to  keep 
if  we  had  the  power,  and  which  suffered  anybody  to  strip  us  who 
could.  One  thing  is  certain  :  we  were  placed  fairly  in  a  position 
to  exclusively  ask  for  and  obtain  the  administrative  consents. 
That  right  was  ours  as  long  as,  in  the  judgment  of  the  Courts,  we 
should  diligently  and  wisely  pursue  it.  When  we  got  it  our 
franchise  was  complete.  The  State  should  not,  and  has  not, 
mocked  us  by  putting  anybody  else  in  a  position  to  obstruct  our 


92 


getting  those  consents.  The  facility  of  procuring  those  consents 
is  jnst  as  important  as  any  other  of  our  rights,  and  hence  the 
unobstructed  right  to  procure  them  is  just  as  inviolate  as  any  other 
feature  of  our  charter.  The  State  sold  us  the  proprietary  right 
under  a  contract  expressed  in  our  charter,  that  if  within  a  reason- 
able time — "  due  diligence  "  is  the  phrase  used — we  should  secure 
the  administrative  consents,  our  right  to  build  the  road  would  be 
complete.  This  facility  of  obtaining  these  consents  is  just  as 
much  a  part  of  our  franchises  as  any  other.  It  is  just  as  much  of 
a  vested  right  as  any  other  ;  and  all  we  say  in  our  brief  on  vested 
rights  is  applicable  to  it.  This  facility  is  protected  under  sec- 
tion 18  of  the  Act  of  1884,  fully.  Of  course  if  the  State,  by 
contract,  has  given  us  the  right  to  build  our  road  on  Forty- 
second  street  it  cannot  afterwards  give  the  same  right  to  another 
any  more  than  a  man  can  sell  a  piece  of  land  to  one  person,  and 
pending  a  subsisting  executory  contract  sell  it  to  another.  Nor 
can  it,  with  honor  or  the  approval  of  the  judiciary  of  the  State, 
contrive  ways  and  obstructions  to  make  the  performance  of  that 
contract  inconvenient  to  us  for  the  benefit  of  another.  The  State,  • 
our  sovereign,  the  fountain  of  honor  and  law,  acting  by  its  legis- 
lature, should  not  be  suspected  of  such  a  thing,  or  any  unworthy 
.thing.  The  Legislature  should  not  be  suspected  of  trifling,  or 
charged  with  trickeries  or  juggleries  of  this  sort  to  defraud 
citizens,  or  of  doing  any  act  which  would  disgrace  and  dishonor 
an  honorable  citizen  to  do  (Mr.  Shaw  here  quoted  from  Potter's 
Dwarris  on  Statutes,  61,  note  7  ;  People  v.  Draper,  15  N.  Y. 
P.,  545.)  What  sort  of  a  thing  is  this  ?  The  sovereign  puts  out 
a  decoy  in  the  form  of  a  right,  to  bait  or  entrap  a  citizen  into 
the  payment  of  money  for  advancing  a  public  enterprise.  It  says : 
"Take  all  my  right,  which  is  the  main  thing,  but  you  must 
"  also  get  certain  consents  which  can  be  had  only  by  you,  if  you 
"  go  about  it  with  diligence,  and  then  you  can  command  the 
*'  enterprise  and  its  profits  and  emoluments." 

u  The  citizen  seizes  upon  the  offer,  puts  up  his  money,  but  when 
he  reaches  out  for  the  consents,  he  finds  his  sovereign  in  front  of 
him,  parrying  all  his  efforts  and  making  it  impossible  for  him  to 
get  them,  by  placing  the  same  proprietary  right  and  the  same 
consents  within  the  reach  of  another.    Can  I  take  money  from 


93 


your  Honors  on  an  executory  contract  lawfully  entered  into,  in 
which  I  have  made  conditions,  and  then  do  acts  to  make  the 
performance  of  those  conditions  impossible  to  you,  and  then  claim 
a  forfeiture  against  you  and  keep  the  money  you  gave  me  ?  This 
is  not  the  law.  I  will  not  mock  justice  by  gravely  contending 
against  such  a  proposition,  even  as  between  citizens.  But  when 
such  a  proposition  is  stated  as  between  the  sovereign  and  a 
citizen,  it  takes  on  monstrous  proportions.  The  great  and  funda- 
mental maxim  of  the  Institutes,  "  Non  potest  rex  gratiam  facere 
cum  injuria  et  damno  aliorum^  thunders  against  such  perfidy — 
such  Punic  faith.  Broom,  commenting  on  this  maxim,  puts  it  in 
this  form  :  "It  is  an  ancient  and  common  rule  of  law,  that  the 
"  King's  grants  are  invalid  when  they  destroy  or  derogate  from 
"  rights,  privileges,  or  immunities  previously  vested  in  another 
"  subject."  (Broom's  Maxims,  p.  63,  and  notes,  eighth  edition.) 
This  is  the  law — Roman  law — English  common  law.  Equity, 
honor,  sovereign  dignity,  demand  that  it  should  be  immutable 
and  catholic  law.  We  place  our  right  to  ■  an  injunction  here. 
If  it  cannot  be  sustained  here,  we  are  free  to  say  that  it  exists 
nowhere.  What  are  the  sovereign  people's  judges  to  do  with 
such  committals  as  the  sovereign  people  have  made  to  us  ?  Are 
we  to  appeal  to  the  Federal  power  of  the  nation  to  drive  this 
abjured,  juggling,  joking,  humbugging  thing  we  call  the  Empire 
State  into  a  sense  of  decent  respect  for  its  contracts  ?  We  entered 
into  the  contract  by  inducements  from  this  sovereign  Empire 
State. 

"  Where  is  its  sovereign  honor  here  ?  Its  invitation  through 
the  Commissioners  implied  and  expressed  an  obligation  to  protect 
our  corporators.  Our  corporators  responded.  Were  they  invited 
to  this  feast  to  be  betrayed  ?  Was  it  a  Borgia  banquet  to  which 
the  guests  should  have  brought  their  coffins  ?  Is  this  sovereign 
authority  a  joker,  a  juggler,  a  three-card  monte  player,  that  says, 
"  Now  you  see  it,  and  now  you  don't  ? "  Or  are  we  to  take,  act 
upon,  and  believe  in  the  solemn  word  of  this  sovereign's  statute 
and  its  officers,  and  rely  upon  them,  as  a  great  verity  ?  Yea,  as 
the  verity  of  verities,  direct  from  the  fountain  of  honor — the 
verity  of  sovereign  dignity  — the  verity  that  flames  before  this 
Court  high  and  bright  above  all  other  -legal  verities,  because  the 


94 


sovereign's  faith  illuminates  it  with  the  Lamp  of  Honor !  Civil- 
ized society  could  not  be  kept  together  in  any  respectable  or 
stable  form  without  such  verity. 

"  I  remember,  when  a  boy,  a  question  arose  similar  to  this  I  am 
arguing,  about  the  Broad  Seal  of  New  Jersey.  I  didn't  then 
know  anything  about  that  seal  or  the  question.  But  there  was  a 
great  public  excitement  about  the  matter,  and  I  got  so  impressed 
about  that  seal  that  I  could  not  sleep  o'  nights.  In  those  days  I 
was  full  of  the  shield  of  Achilles,  and  that  sort  of  thing.  The 
splendor  of  the  shield  of  that  fitful  and  sulky  contingent  of 
Agamemnon  was  an  immense  matter  with  me.  I  was  for 
Achilles.  I  believed  in  his  shield  and  him.  I  likened  it  unto 
the  Broad  Seal  of  New  Jersey.  I  cannot  exaggerate  the  appre- 
ciation I  then  entertained  of  that  Broad  Seal.  Forty  million 
electric  lights  on  a  surface  a  thousand  times  vaster  than  this 
court-house  could  not  have  illustrated  its  splendor  to  my  fancy. 
"Well,  I  have  arrived  to  manhood's  estate.  My  boyish  fancy  was 
ridiculous.  Ridiculous  only  in  the  form  of  it.  But  vaster  far 
as  to  substance  is  now  my  conception  from  manhood's  standpoint 
of  the  Broad  Seal  of  New  Jersey.  •  That,  as  are  all  other  sover- 
eign seals,  is  an  insignificant  physical  fact.  Such  seals  are  but 
mere  perfunctory  official  things.  They  are  not  as  large  as  the 
setting  sun,  and  scarcely  larger  than  a  twinkling  star,  but  they 
carry  the  faith,  the  honor,  the  inviolate  promise  of  civilized 
society  with  them,  which  are  as  wide  as  the  universe.  The 
Broad  Seal  of  New  Jersey  brought  the  Federal  power  of  our 
republic  to  a  realization  of  this  immense  fact.  This  fact  was 
warmly,  eagerly,  welcomed  by  the  Supreme  Court  of  the  United 
States.  That  Court  ruled  for  it  with  decorous  ardor  in  the 
Dartmouth  College  case,  and  it  has  always  upheld  it  whenever 
cases  have  arisen  that  have  given  occasion  to  do  so. 

"  This  is  enough  on  the  subject  of  our  exclusive  right.  I  now 
ask  your  Honors  to  consider  an  aspect  of  this  case  with  respect 
to  which  much  I  have  said  is  applicable  The  Judge  in  the  Court 
below,  whose  opinion  is  in  the  papers — I  have  alluded  to  it 
before — expresses  a  view  that  our  charter  is  defective  in  a  single 
particular.  I  do  not  think  it  lay  with  him,  or  lies  with  you,  to  call 
our  charter  in  question  tfn  this  appeal,  but  I  must  deal  with  his 


95 


question.  I  shall  have  to  deal  with  it  as  an  advocate;  and  in 
doing  so,  I  feel  that  some  certain  restraint  ought  to  govern  me. 
It  is  best  to  begin  right.  I  therefore  say  I  have  the  most  un- 
doubted confidence  that  the  Judge  below  expressed  his  views  in 
this  case.  From  Ms  views  we  are  forced  to  dissent.  There  is 
much  clamor  about  these  railroad  grants.  Much  or  little  may 
be  known  about  them  by  the  Judges  of  this  Court.  I  assume  and 
believe  that  no  Judge  of  this  Court  knows  anvthing  about  them 
except  what  is  exhibited  in  proof  before  him.  As  to  the  Judge 
below,  and  his  decision,  from  which  this  appeal  is  taken,  I  wish 
to  say  I  never  honor  him  too  little,  because  I  cannot  honor  him 
too  much  as  a  conscientious  magistrate ;  but  I  am  forced 
to  speak  right  out  against  his  conception  of  the  law  of  this  case. 
His  view  of  our  charter  does  not  broadly  embrace  the  conception 
that  it  comes  from  the  State,  that  it  is  in  no  sense  a  private 
grant,  that  it  involves  matters  of  public  service,  that  State  officers 
gave  it  to  us,  that  we  paid  for  it  on  invitation  and  by  induce- 
ments which  those  officers  put  forth  by  direction  and  authority. 
He  failed  to  consider  that  we  stand  in  a  relation  close  to  the 
sovereign  dignity  of  the  State  and  to  all  the  people  of 
the  State.  Suppose  that  an  "i"  was  not  dotted  or  a  "t" 
crossed,  as  he  thinks  it  might  well  be.  Admit  that  his  view 
of  the  precise  form  of  such  a  charter  as  we  have,  is  not 
quite  according 'to  the  form  of  a  charter  he  would  have  drawn, 
had  he  been  a  commissioner.  Admit  these,  or  all  other  technical 
objections  the  crankiest  objector  could  make.  What  is  the  force 
of  them  ?  They  are  nothing.  It  is  too  late  to  stand  on  ceremony 
or  technicalities  about  the  Rapid  Transit  Act  of  1875.  It  has 
been  declared  by  the  whole  judicial  authority  of  this  State  to  be  a 
public  act  and  valid.  Now  this  appeal  is  taken  because  the 
judge  below  has  decided  that  some  matter  of  time  has  not  been 
fixed  in  the  charter  of  our  company  for  the  construction  of  our 
roads  with  absolute  definiteness — in  accordance  with  his  con- 
ception of  the  literal  directions  of  the  statute — hence  it  is 
insinuated  that  our  charter  is  void,  and  that  we  have  no  rights  to 
enforce  under  it.  This  we  submit  is  not  the  rule  of  judicial 
interpretation.  Look  at  7  Hun,  p.  2±1,  where  the  General  Term 
of  the  Supreme  Court  declared  in  the  elevated  railroad  cases 


96 

nnder  that  act  where  such  questions  were  raised  :  "  In  any  event 
the  time  ivithin  which  a  public  act  is  to  be  performed  is  not  man- 
datory but  directory,  and  a  literal  observance  of  the  direction  as 
to  time  is  not  indispensable  to  the  validity  of  the  act."  Go 
further,  consult  any  elementary  authority  which  deals  with 
such  a  question.  The  best  authority  I  know  of  is  "  Sedgwick 
on  Statutory  and  Constitutional  Law."  At  page  368,  and  in  the 
next  twenty-five  consecutive  pages,  will  be  found  the  law  on 
this  subject.  I  will  read  but  a  paragraph  from  page  368  (Mr. 
Shaw  here  read) :  u  When  public  statutes  direct  certain  proceed- 
ings to  be  done  in  a  certain  way,  or  at  a  certain  time,  and  a  strict 
compliance  ivith  these  provisions  of  time  and  form  does  not 
appear  essential  to  the  judicial  mind,  the  proceedings  are  held 
valid,  though  the  command  of  the  statute  is  disregarded  or 
disobeyed."  This  authority  from  which  I  read,  deals  with  the 
question  as  to  how  the  "  judicial  mind  "  should  view  such  a 
charter  as  we  hold  from  officers  delegated  by  the  State  to  grant  it. 

"  Now,  the  original  .Rapid  Transit  Act  contains  forty-two  sec- 
tions, and  there  are  many  more  sections  by  way  of  amendment,  and 
prescribes  more  than  100  provisions  as  to  the  certain  way  and 
certain  time  by  and  within  which  things  should  be  done.  We 
claim  that  all  these  hundred  and  more  things  have  been  literally 
done  and  provided  for  precisely  in  the  certain  way  and  certain 
time  required  by  the  act.  But  suppose  they  had  not  ?  Time  and 
method  of  procedure  are  not  of  the  essence  of  a  public  statute, 
unless  so  declared  in  the  statute.  On  the  contrary,  the  largest 
indulgence  is  given  to  miscarriages  as  to  form  and  time,  which 
do  not  affect  the  main  purpose  of  the  statute.  The  purpose  of 
the  statute  was  to  give  speedy  and  needed  city  transit.  That 
transit  could  not  be  had  without  the  administrative  consents.  Iso 
man  could  say  when  those  consents  could  be  obtained.  The  Com- 
missioners saw  that  and  were  not  disposed  to  guess  about  it. 
They  said,  "  We  know  from  engineering  experts  who  have 
"  advised  us  about  how  long  it  will  take  to  build  the  rail- 
"  way  after  permission  to  build  it  is  given,  but  we  don't  know 
"  how  long  the  Board  of  Aldermen,  the  abutting  owners,  or  the 
"  General  Term  of  the  Supreme  Court  may  deliberate  about 
a  giving  the  permission.    We,  therefore,  fix  the  time  for  the  con- 


97 


"  struction  after  permission  is  given.  We  also  require,  so  that  no 
"  delays  may  be  possible,  that  the  administrative  consents  shall  be 
"  sought  for  with  all  dne  diligence."  That  requirement  left  the 
question  of  diligence  in  pursuing  the  consents  with  the  courts. 
Could  it  be  left  in  a  better  place  ?  Does  anybody  complain  that 
we  have  not  been  diligent  ?  Do  we  not  aver  diligence  ?  Does 
any  one  deny  it  ?  Is  not  our  diligence  the  chief  grievance  of  our 
adversary  ?  Would  he  not  rejoice  if  we  had  not  been  so  dili- 
gent ?  Is  it  not  his  trouble  that  we  are  too  diligent  ?  I  think 
the  Court  understands  this.  Now,  who  makes  this  complaint? 
It  is  a  horse  railroad  party  who  claims  under  the  General  Surface 
Kailroad  Act  of  1884.  Section  10  of  that  act  provides  for  the 
completion  of  roads  to  be  constructed  under  that  act  "  within  three 
" years  after  obtaining  such  consents"  and  if  legal  proceedings 
delay,  the  time  may  be  further  extended  for  construction.  Is  not 
this  a  fair  and  full  legislative  exposition  of  our  Commissioners' 
views  on  this  matter  of  time  ?  What  more  can  be  needed  ?  I  would 
ask  your  honors  to  consult  Sedgwick  on  Statutory  and  Constitu- 
tional Law,  p.  252,  under  the  heading  "  Legislative  Exposition," 
where  all  I  could  or  would  say  on  this  subject  is  luminously  ex- 
pressed. I  will  read  but  a  paragraph  from  the  Yermont  case  referred 
to  (Mr.  Shaw  read)  :  This  is  the  law  everywhere.  There  is  no 
doubt  about  it.  The  act  of  1875  and  the  act  of  1884  are  identical  in 
their  aim.  They  are  both  public  acts.  They  both  mean  city 
transit.  They  are  in  pari  materia.  The  latter  act  refers  to  the 
former — see  §  16 — and  both  deal  with  the  public  question  of 
intramural  transit.  Both  acts  contemplate,  as  does  the  constitu- 
tional amendment  of  1875,  that  no  construction  of  railroads  can 
be  undertaken  until  after  the  administrative  consents  are  obtained. 
The  time  to  obtain  those  consents  is  recognized  in  the  act  of  1884 
(as  it  ought  to  be)  as  an  unknown  quantity.  Our  Commissioners, 
under  the  act  of  1875,  dealt  with  it  in  the  same  way,  but  they 
added,  to  carefully  guard  against  any  possibility  of  abuse  of  our 
corporate  powers,  that  we  must  pursue  those  consents  "  with  all 
due  diligence,"  and  thus  placed  us  within  the  reach  of  the  Courts. 
There  we  are.  Who  shall  say  that  the  check-rein  of  judicial 
power  can't  or  won't  control  us  and  end  us  on  the  complaint  of 
some  competent  objector  ?    Is  this  Court  to  say,  as  the  Judge 

7 


98 


below  says,  that  this  Court  of  Common  Pleas  can't  trust  the  Board 
of  Aldermen  ?  That  it  can't  trust  the  General  Term  of  the 
Supreme  Court  ?  I  leave  the  consent  of  the  abutting  owners  out 
of  the  question.  They  are  not  factors  here.  If  they  were  here  in 
a  body  and  assenting  to  our  scheme  of  transit,  and  the  Aldermen 
were  also  here  and  assenting,  the  Court  below  would  still  say,  "  It 
"  is  all  wrong  to  let  this  Cable  Company  live,  because  its  charter 
"  as  drawn  was  1  too  fluctuating '  in  the  matter  of  time  allowed 
"  for  constructing  their  roads.  No  matter  if  the  indefinite  time 
"  of  the  charter  had  been  followed  by  prompt  or  instantaneous 
"  consents,  still  that  would  not  cure  the  defect  in  the  charter.'' 
If  the  abutting  owners  were  here  to  say  that  they  never  would 
consent  and  the  Aldermen  were  here  consenting,  then  we  would 
i  only  have  the  General  Term  of  the  Supreme  Court  to  consult,  but 
the  Judge  below  would  rule  "  this  is  too  fluctuating — we  can't 
trust  the  General  Term  of  the  Supreme  Court  doing  business  in 
time."  In  short  the  opinion  of  the  Judge  below  means  that  this 
Cable  Company  shall  not  survive;  because  its  charter  does  not 
conform  to  the  provisions  of  section  6  of  the  Act  of  1875  as  he 
reads  it.  He  attaches  no  importance  to  the  requirement  of  the 
"  due  diligence  "  clause.  He  expresses  no  appreciation  of  the 
power  of  any  competent  objector,  or  of  the  Attorney-General, 
before  the  courts,  to  end  all  "  fluctuations  "  of  time  in  case  we 
fail  in  diligence.  The  logic  of  his  position  is  this :  The  time 
was  not  fixed  properly  by  the  Commissioners,  consequently  the 
charter  they  gave  our  Cable  Company  is  absolutely  invalid  and 
void  ab  initio.  It  means  that,  if  on  the  very  day  our  charter  was 
granted,  the  Aldermen  and  abutting  owners  had  given  us  their 
administrative  consents,  such  consents  would  have  been  vain  and 
ineffectual,  because  the  TIME  for  the  construction  of  the  Cable 
Company's  roads  was  not  fixed  to  run  from  a  date  which  should 
include  the  time  of  obtaining  the  administrative  consents  on  the 
same  day.  That  is  what  the  Judge  below  meant.  Is  it  a  wonder 
that  we  are  here  on  appeal  ?  Would  it  be  a  wonder,  if  we  would 
never  rest  so  long  as  there  is  a  Court  in  the  land  to  hear  our 
outcry  ? " 

Now,  in  conclusion  of  this  topic,  I  seriously  ask  if  it  will  be 
contended  that  any  whipster  who  is  sent  here  by  horse  railroads  to 


99 

goad  and  annoy  me  can  get  up  gadfly-excitement  which  shall  so 
result  that  a  grand  structure  like  ours  is  to  be  crumbled ;  I  think 
not.  Gibralter  can't  be  taken  by  Tom  Thumb  with  a  pocket 
pistol,  and  our  outworks  even  don't  contemplate  any  greater  fire. 
His  catapult  is  feebler  than  impotence.  I  have  no  name  for  its 
infinite  weakness.  We  are  not  a  card-house,  to  be  destroyed  by 
straws  or  sham  spears  of  any  sort." 

Mr.  Shaw  (speaking  to  his  associate) — This  is  enough  of  that 
argument.  Mr.  Shaw  (addressing  the  Commissioners) — What 
has  been  read  conveys  all  that  I  wanted  to  convey  to  assist  the 
presentation  I  have  in  hand.  I  think  the  Commissioners  under- 
stand this. 

Chairman  Pelton — We  understand  you  perfectly,  Mr.  Shaw 
you  may  resume  your  argument. 

Mr.  Shaw — Now  our  case  is  this :  Prior  to  1875  the  people  of 
the  State  claimed  and  held  in  full  proprietorship  the  title  to  all 
the  streets  in  this  city.  They  could  dispose  of  such  streets  for 
the  purpose  of  transit  absolutely  and  unqualifiedly  to  any  parties, 
whether  persons  or  corporations.  They  might  do  this  by  the  act 
of  Legislature.  Now  all  this  array  of  opposition  from  these 
horse-railroad  camps  that  I  am  contending  against,  these 
railroad  men  who  are  bombarding  us,  derive  their  rights  from  the 
act  of  May  6,  1884.  They  attempted  to  file  upon  our  routes, 
while  we  were  diligently  trying  to  get  the  consents  which  we 
have  bargained  for  with  the  Legislature  of  this  State — for  it  is 
the  decision  of  the  Court  of  Appeals,  that  the  Rapid  Transit 
Commissioners  dealt  with  us  in  the  capacity  as  a  Legislature 
and  they  gave  us  the  consent  of  the  people.  We  are  bound  by 
those  Articles  of  Association  to  proceed  with  due  diligence  to 
get  the  consent  of  the  local  authorities  and  property-owners  and 
as  long  as  we  are  actively  engaged  in  that,  no  person  has  the 
right  to  file  upon  our  route  under  the  Act  of  1884. 

Now,  I  beg  to  say,  that  all  this  argument  I  made  before  Mr. 
Justice  Daly's  Court  of  Common  Pleas,  was  made  before  the 
General  Term  of  the  Supreme  Court  that  appointed  you.  His 
decision  on  that  argument  had  been  twice  before  that  same  Gen- 
eral Term  weeks  before  you  were  appointed.    The  strain  of  my 


100 


argument  was  caught  by  the  master-hand  of  Mr.  Evarts,  and  all 
questions  were  presented  and  driven  home. 

To  be  exactly  just,  I  ought  to  say  the  strain  is  all  his  own. 
Its  vital  power  was  derived  from  his  own  interpretation,  and 
without  which  all  we  are,  and  all  we  hope  to  be,  would  have 
been  buried  beneath  the  avalanche  of  opposition  that  I  so 
easily  contend  against  here.  When  his  commanding  juridical 
conceptions  of  the  intrinsic  rights  of  our  corporation  were 
unfolded  to  our  corporators  in  the  situation  they  were  exposed 
after  furnishing  hundreds  of  thousands  of  dollars  in  our  enter- 
prise, they  no  longer  inquired  about  the  authorship  of  "  Beauti- 
ful Snow,"  but  we  felt  in  our  veins  such  milk  as  Komulus  fed  on, 
and  which  made  memorial  the  retreat  of  Justinius,  near  which, 
against  the  foremost  power  and  the  foremost  lawyers  of  the 
world,  and  before  the  foremost  jurists  of  the  world,  our  Geneva 
award  was  argued  for  and  won. 

I  tender  to  all  these  horse  railroads  a  Scotch  thistle. 
Touch  me  if  you  dare. 

The  appointment  of  Commissioners  by  the  General  Term 
is  the  result  of  Mr.  Evarts'  argument.  Hence  you  are  sitting 
here  as  Commissioners.  Mr.  Evarts'  opinions  I  have  laid 
before  you.  They  cover  every  question  except  the  question  of 
notice  to  property-owners,  about  which  no  hearing  was  had, 
and  which  he  and  all  of  us  supposed,  from  intimations  of  the 
Court,  was  to  be  held  in  abeyance  until  this  Commission's 
report  should  be  submitted  to  it.  If  we  erred  in  this,  it  was 
a  misunderstanding  which  we  have  corrected  on  nunc  pro  tunc 
papers.  To  show  that  this  is  so,  I  have  read  a  point  on  our 
brief  to  the  Court  to  correct  the  error,  and  all  the  error  haa 
been  corrected.  It  is  the  additional  point  by  Messrs.  Sewell 
&  Shaw,  which  I  have  read. 

Chairman  Pelton — We  recall  it. 

I  wish  the  Commissioners  to  understand  that  on  the  22d  day 
April,  we  had  a  grant  from  the  People  of  the  State  of  New  York 
in  its  sovereign  capacity,  clothing  us  with  full,  and  complete  and 
absolute  proprietary  rights  in  the  streets  for  our  railroad,  subject 
to  our  obtaining  the  consent  of  the  abutting  owners  and  the  local 


101 


authorities,  and  that  no  one  under  any  subsequent  act  or  by  any 
subsequent  legislation  should  be  allowed  to  come  in  and  try  to 
get  consents  and  slip  in  ahead  of  us.  What  mockery  it  would  be 
for  a  great  sovereign  people,  to  hold  out  an  inducement  for  honest 
investors,  challenged  by  inducements  and  advertisements  to 
come  in  and  carry  out  a  system  of  public  service,  and  tell  them 
if  they  do  they  shall  have  the  exclusive  right  of  the  enjoyment 
of  those  privileges  and  then  turn  around  and  pass  legislation  that 
allows  a  stranger,  an  interloper,  a  franchise  jumper  to  take  the 
franchise  secured  by  them  from  the  people.  What  sort  of  a 
sovereign  is  that  ?  How  does  it  comport  with  the  dignity  of  a  great 
sovereign  people  to  break  with  its  own  faith  and  cheat  and  de- 
fraud subjects  and  citizens  by  passing  an  act  like  this  act  of  1884, 
after  we  have  paid  for  our  charter  rights  and  our  privileges !  And 
therefore  it  was  when  these  people  attempted  to  avail  themselves 
of  the  provisions  of  that  act  and  slip  into  our  shoes  and  get  the 
consent  of  the  Common  Council  and  strip  us  out  of  one  route  and 
another  and  tear  the  whole  system  to  pieces,  we  arose  and  de- 
manded these  injunctions  and  fought  with  all  our  desperation. 
We  knew  what  our  right  was.  We  obtained  our  injunction 
against  the  Second  Avenue  Railroad  which  the  Assistant  Corpora- 
tion Counsel,  Mr  Wickes,  is  so  anxious  to  know  about,  in  the 
Supreme  Court,  and  we  argued  it  at  the  General  Term  and  we  un- 
folded all  this  question.  I  have  heard  Mr.  Evarts  make  great 
arguments,  but  I  never  heard  him  on  any  great  occasion  surpass 
the  effort  that  he  made  in  discussing  our  absolute  charter  rights, 
and  the  duty  of  the  sovereign  and  the  sovereign's  justices  to  come 
in  and  protect  us  on  this  contract  made  with  us. 

]S"ow,  after  that  argument  was  heard  and  the  appeal  with- 
drawn, the  Court,  fully  possessed  of  all  these  questions,  appointed 
this  Commission. 

I  had  something  further  that  I  wanted  to  say,  to  illustrate  and 
elucidate  our  great  right.  They  talk  of  us  as  adventurers.  We  are 
not  adventurers.  These  (Mayor's)  Commissioners  put  forth  their 
subscription  paper  and  invited  the  people  of  all  the  world  to  come 
in  and  subscribe  in  a  corporation  created  with  certain  powers  to  ren- 
der public  services  ;  we  came  in ;  we  got  a  right  by  it ;  after  we 
got  our  right,  the  horse-railroad  people  and  the  franchise-hunters 


102 


obtained  the  act  of  1884  in  its  present  form,  so  that  they  might 
get  what  we  had  contracted  for  and  paid  for  and  had  a  right  to  ; 
and  I  say  to  my  friend  Trull  who  comes  here  to  talk  about  his 
client's  right  to  their  railroads  on  Forty-second  street  and  else- 
where over  our  routes,  that  he  got  his  rights  under  the  act  of 
1884  subsequent  to  the  accruement  of  our  right  over  those 
routes,  and  that  his  right 

"  Compared  with  mine 
Is  as  moonlight  unto  sunlight, 
And  as  water  unto  wine." 

You  and  all  the  world  must  look  at  us  as  having  a  crowning 
claim  on  your  confidence  and  conscience  ;  you  must  not  look 
upon  us  as  adventurers ;  and  when  these  opposing  parties  come 
before  you  to  secure,  by  our  discomfiture  here,  a  franchise 
to  which  we  have  at  least  the  first  right,  you  must  look  upon 
us  as  holding  that  right  clothed  with  the  sovereign's  recom- 
mendation ;  clothed  with  the  indorsement  of  the  Court  that 
had  heard  our  whole  case  before  they  appointed  you.  And  the 
Court  has  shown  sympathy  with  us  in  keeping  off  from  our 
routes  these  people,  these  horse-railroad  and  franchise- jumping 
vendetti  that  are  trying  to  get  what  is  ours.  Such  people  to  come 
here  and  try  to  commend  themselves  to  your  consideration  as 
against  us,  by  an  assault  upon  our  right,  are  too  intolerable  to 
endure !  I  want  you  to  know  who  we  are,  Messrs.  Honorable 
Commissioners,  and  understand  our  right  and  claim.  I  under- 
stand these  horse  railroads  and  franchise  jumpers  are  opposing  us 
and  trying  to  get  what  we  already  have  from  the  State.  They  are 
trying  to  get  it  through  Boards  of  Aldermen,  and  through  traffic, 
and  trickery,  and  to  keep  up  the  war  on  us  until  we  shall  be 
exhausted.  But  we  are  bound  to  due  diligence  and  we  must 
always  be  diligent ;  and  we  have  always  been. 

Now  to  clear  up  the  only  remaining  question  that  I  care  to 
discuss  on  the  subject  of  our  origin,  I  will  allude  to  the  personnel 
of  the  Mayor's  Commission.  I  yesterday  showed  your  Honors 
there  was  no  undue  haste ;  no  improvident  action  on  the  part  of  the 
Commissioners ;  that  they  did  not  hasten  their  work,  but  accom- 
plished it  on  time  and  did  as  prescribed  by  the  statute.  Bern  ark 
has  been  made  here  that  really  you  should  not  give  a  very  great 


103 


deal  of  weight  to  the  determination  of  those  Commissioners, 
for  the  reason,  they  say,  that  only  three  out  of  eight  Commission- 
ers have  approved  of  this  system  of  roads.  Now,  when  these 
horse-railroad  people  discovered  the  powers  that,  lay  in  that  Papid 
Transit  Act,  that  the  Mayor's  Commission  really  had  power  to 
lay  out  routes  and  fix  that  exclusive  power,  they  manifested 
frantic  rage.  The  newspapers  commenced  to  howl ;  the  music 
ran  along  the  whole  line  ;  public  opinion  was  invoked  ;  the  Legis- 
lature was  besieged  ;  every  effort  was  made  to  stop  that  Commis- 
sion and  its  work,  and  it  involved  the  Mayor  who  appointed  it, 
as  he  supposed,  politically,  and  Mayor  Edson  desired,  at  a  very 
late  stage  in  the  proceedings  of  the  Commission  to  reconstitute  it 
of  gentlemen  who  were  his  personal  friends,  whose  reputation 
among  his  friends  would  be  an  assurance  that  there  had  been  no 
wrong  or  improper  working — a  mere  matter  for  his  own  pro- 
tection. He  suggested  three  gentlemen.  One  is  the  present 
Collector  of  the  Port,  Mr.  Hedden,  another  was  Mr.  Randolph, 
the  President  of  the  Continental  Bank,  and  the  other  was  Mr. 
Devoe,  President  of  the  Mount  Morris  Bank.  All  strong  men. 
They  were  appointed  on  the  31st  day  of  March,  1884,  and  took 
office  on  the  2d  day  of  April.  At  that  time  these  periods  of 
statutory  performance  to  which  I  have  referred,  30,  60,  90,  120 
days  had  elapsed.  At  that  time  Articles  of  Association  had 
been  unanimously  passed,  and  were  a  part  of  the  fixed  proceed- 
ings of  the  Commissioners.  On  the  4th  day  of  April,  that  is 
two  days  after  their  appointment,  they  were  called  upon  to  recon- 
sider those  articles  and  re- vote  on  them,  so  that  they  would  have 
an  opportunity  to  comply  with  the  requests  of  the  Mayor. 

Now,  what  could  three  fresh  gentlemen  put  upon  a  Commis- 
sion do  in  two  days  %  Here  were  questions  in  which  were  involved 
the  talent  of  engiueers,  statistical  information,  visits  to  Chicago, 
thousands  of  dollars  expenses,  a  transfer  system,  and  all  these  great 
questions,  not  one  of  which  they  probably  understood,  but  it  looked 
to  them  very  large  that  there  should  be  twenty-nine  routes  given 
to  one  corporation,  and  that  seemed  to  be  and  was  their  main 
doubt.  They  said  they  would  not  have  given  so  large  a  number 
of  routes  to  any  one  corporation  if  they  had  been  the  original 
Commissioners.    That  is  their  doubt.    They  would  exclude  some 


104 


routes  and  they  would  give  them  to  another  corporation.  You 
know,  after  the  discussions  we  have  had,  that  the  larger  the  num- 
ber of  routes  in  one  corporation  the  less  the  monopoly  by  this  trans- 
fer system.  You  know  the  larger  the  mileage  the  less  the  monopoly 
under  this  transfer  system.  You  know  it  would  be  a  great  deal 
better  if  all  th#  railroads  in  this  city  were  under  one  corporate  con- 
trol ;  then,  instead  of  having  ten  or  fifteen  different  lines,  all 
charging  their  five-cent  fare,  this  transfer  system  would  be  doing 
the  public  service  required  without  charging  additional  fares.  You 
know  it.  These  fresh  Commissioners  did  not,  and  there  was  no 
opportunity  to  tell  them  and  make  it  plain  in  the  closing  moments 
of  the  Commission.  General  Yiele  was  not  before  them ;  they 
were  taken  into  a  back  room  and  the  Articles  of  Association  pre- 
sented to  them,  and  they  said  it  looks  quite  large  to  us,  and  they 
got  their  lawyer  to  draw  them  up  a  qualified  letter  which  they  put 
upon  record  and  then  voted  AYE.  Their  assent  or  dissent  really 
amounted  to  nothing.  They  thought  the  scheme  looked  large  ; 
they  did  not  know  the  scheme  of  the  system.  They  have  never 
pretended  that  they  did,  and  it  is  impossible  to  suppose  they 
could.  You've  been  five  months  in  trying  to  get  at  it.  You 
were  staggered  at  first  blush  by  its  magnitude.  What  could  you 
have  done  in  two  days  on  such  a  theme?  The  education  of  five 
months  has  put  you  in  a  reasonable  appreciation  of  it. 

Two  days  were  not  sufficient  for  fresh  men  to  grasp  this  whole 
system.  The  work  was  perfunctory  and  nothing  else.  But  yet 
they  saw  enough  of  the  system  to  know  that  it  was  too  valuable 
to  be  lost — that  its  great  features  ought  to  be  preserved,  but 
they  preferred  two  corporations  instead  of  one  for  these  vast 
public  services.  And  what  would  be  the  result  of  having 
two  corporations  instead  of  one  ?  It  would  be  just  twice  the 
fares  and  double  the  collection  from  the  pockets  of  the  people 
that  one  transfer  system  makes.  That  is  the  full  history  of  this 
branch  of  the  case. 

I  meet  these  fresh  Commissioners  almost  every  day,  and  they 
all  express  regrets  that  they  did  not  see  the  system  in  the  light 
their  associates  and  predecessors  saw  it,  and  in  the  light  I  think 
you  see  it. 

Now,  the  testimony  in  this  case,  if  my  friends  are  inclined  to 


105 


dispute  this  statement,  will  be  found  on  the  pages  which  I  have 
marked  in  this  book  I  hold  in  my  hand,  and  if  jour  Honors  will 
take  down  the  citation  from  page  391,  page  424,  pages  492  and 
497,  you  will  find  all  my  averments  verities. 

I  read  from  these  pages  of  the  Cable  Rapid  Transit  Commis- 
sion. That  is  the  report  of  the  Commission  in  which  these  fresh 
Commissioners  joined.  It  was  unanimous.  That  ends  all  this 
stuff  and  nonsense  about  only  three  out  of  eight  Commissioners, 
so  much  dwelt  on. 

The  fresh  Commissioners  thought  there  was  too  much  power 
in  one  corporation,  not  knowing  that  the  larger  the  power  in  one 
corporation  the  smaller  it  was  as  a  monopoly,  and  the  more  bene- 
ficent in  its  operation.  If  there  had  been  three  or  four  corpor- 
ations the  people  would  have  to  pay  triple  or  quadruple  fares. 
But,  notwithstanding,  the  advantages  of  the  system  were  so  over- 
whelming that  they  indorsed  it. 

Now,  I  wish  to  make  some  observations  upon  Mr.  Wickes' 
testimony  and  position.  As  he  is  not  here  at  this  moment  and 
has  notified  me  that  he  would  be  detained  by  other  engagements 
for  the  day,  I  will  simply  say  that  I  cannot  withdraw,  on  careful 
reflection,  any  criticism,  or  mitigate  the  severity  of  any  criticism 
that  I  have  made  upon  his  testimony  or  upon  his  position.  It  is 
painful  for  me  to  be  obliged  to  say  that  every  attempt  at  explan- 
ation has  only  involved  him  deeper  and  deeper  in  the  mire ;  and 
he  put  the  crowning  cap  of  infamy  upon  his  official  head  when  the 
Chairman  of  this  Commission  asked  him,  the  other  day  :  "  If 
you  had  been  instructed  by  the  Mayor  and  the  officers  of  the  city 
to  come  here  and  favor  this  road,  would  you  have  come  ?"  He 
was  silent,  and  then,  again,  the  Chairman  put  the  question  to  him 
and  he  was  silent.  Then  said  the  Chairman,  "  But  Mr.  Wickes, 
I  am  asking  you  if  you  had  been  instructed  by  the  City  author- 
ities to  come  here  and  favor  this  road,  would  you  have  done  so  1 " 
and  he  said  "  ~No.v  His  is  a  voluntary  appearance,  and  he  came 
with  the  fell  purpose  to  oppose  this  road  and  their  counsel ;  and 
all  this  opposition  have  whipped  out  maps  made  at  the  Depart- 
ment of  Public  Works,  and  the  printed  documents  of  their  entire 
case  paid  for  out  of  the  City  Treasury. 


106 


The  Chairman— I  think  you  have  misquoted  Mr.  Wickes. 
My  recollection  is  not  

Mr.  Shaw — I  should  be  glad  to  be  corrected. 

The  Chairman — My  language  was, "  Supposing  the  Mayor  and 
the  other  heads  of  Departments,  at  whose  request  he  appeared 
here,  had  requested  him  to  go  to  Chicago  to  obtain  testimony  in 
favor  of  the  cable  system,  if  he  would  have  felt  it  in  his  line  of 
duty  to  do  so  ? "  and  he  said  he  would. 

Mr.  Shaw — I  distinctly  understood  him  to  be  asked,  if  he  had 
been  requested  by  the  Mayor  and  the  other  heads  of  the  depart- 
ments to  come  here  and  favor  this  road,  would  he  have  done  so,, 
and  after  some  hesitation  he  answered  no. 

The  Chairman — It  is  not  material. 

Mr.  Shaw — I  think  it  is  material. 

The  benefit  of  that  testimony  is  the  legacy,  and  I  hope  the 
only  legacy  my  friends  in  the  opposition  will  have  from  the 
Counsel  to  the  Corporation.  Now,  we  know  all  about  that  testi- 
mony. I  have  commented  on  it  already.  We  know  what  con- 
fidence to  place  in  Mr.  Sterling.  He  said  that  he  got  on  a  cable 
car  in  Chicago,  and  he  was  thrown  violently  forward  and 
backward.  He  staggered  us  a  great  deal  more  by  that  state- 
ment than  he  could  have  been  staggered  by  the  motion  of  the 
car.  Anybody  who  rides  on  the  cars  on  the  Brooklyn  Bridge 
understands  that.  It  is  a  delightful  method  of  transit,  and 
Mr.  McKay's  testimony  as  to  the  deserted  village  of  the  plain 
and  a  few  characteristics  of  that  sort  settles  the  matter. 

The  Chairman — The  Commissioners  feel  that  they  have  got 
a  right  in  reaching  a  conclusion  on  this  subject  to  be  guided,  to 
some  extent,  by  their  own  personal  observations.  I  shall  very 
likely  myself  inspect  this  Chicago  system  very  much  more  fully 
than  I  have  heretofore.  But  if  I  should  do  that,  it  would  cer- 
tainly appear  in  any  report  that  I  might  make  just  what  I  have 
done.  It  was  objected  early  in  the  proceedings  that  the  Commis- 
sioners would  have  no  right  to  go  to  Chicago.    I  think  I  have  the 


107 


right.  If  I  err  in  that  respect  either  the  petitioners  or  the  ob- 
jectors will  have  the  benefit  of  whatever  I  do.  I  state  openly  and 
above  board  what  I  propose  to  do ;  and  whatever  I  do  will  not 
be  done  in  the  dark  or  clandestinely.  I  must  say  in  passing,  I 
am  not  stating  the  sentiments  of  my  associates.  I  am  speaking 
for  myself  alone. 

Mr.  Shaw — The  fact  will  further  appear  that  Mr.  Scribner, 
who  is  either  Achilles  or  Agamemnon  of  this  opposition — I  don't 
know  how  Mr.  Trull  and  himself  divide  the  honors  of  the  Epic 
founded  upon  the  romances  of  Mr.  McKay's  witnesses — expressed 
a  desire  that  the  Commissioners  should  go  to  Chicago  ;  and  I  don't 
think  there  is  anybody  to  object ;  and  I  hope  that  in  any  report 
that  the  Commissioners  write  

The  Chairman — That  fact  will  appear  of  record  whether 
we  have  or  have  not. 

Mr.  Shaw — I  pass  by  all  Mr.  Wickes'  mass  of  testimony  and 
reach  the  remaining  objections  which  are  now  made  before  this 
Rapid  Transit  Commission.  They  say  to  us  that  the  cable  rail- 
ways are  an  experiment.  We  know  that  they  are  in  successful 
operation  in  San  Francisco  and  Chicago.  I  hold  in  my  hand  a 
London  newspaper  containing  an  account  of  the  opemng  of  the 
Highgate  Hill  Tramway  by  the  Lord  Mayor  of  London  and  the 
Aldermen.  The  day  was  very  fine,  and  thousands  of  spectators 
who  saw  the  operation  of  the  cars  were  quite  enthusiastic.  The 
London  Times  devoted  three  or  four  columns  to  it,  and  the  paper 
that  I  have  in  my  hand  has  seven  columns  in  regard  to  it.  This 
paper  is  dated  May  21,  1884. 

The  Chairman — "Was  that  the  cable  traction  ? 

Mr.  Shaw — Yes,  sir.  It  is  about  two  and  a  half  miles  long, 
and  it  is  a  very  narrow  street,  and  there  is  a  very  heavy  grade.  I 
want  to  call  your  attention  to  the  fact  that  the  Lord  Mayor  and 
Members  of  Parliament,  and  the  city  authorities,  attended  in 
great  state ;  speeches  were  made,  and  it  was  a  great  day. 

Mr.  Teaphagen — The  Lord  Mayor  here  don't  take  so  much 
interest  in  the  cable  svstem. 

(Extract  from  London  newspaper  read). 


108 


Mr.  Shaw — I  don't  know  but  I  ought  to  acquit  Mr.  Wickes 
of  all  blame  in  this  matter,  and  saddle  it  upon  that  man  who  is 
riding  into  a  cheap  and  nasty  fame  on  the  back  of  the  "  Dolphin," 
who  seems  to  be  still  the  master  spirit  of  that  Corporation 
Counsel's  office,  notwithstanding  he  is  managing  the  Navy 
Department.  I  might  as  well  be  understood  that  this  last  grid- 
iron arrangement  which  I  have  exposed,  wherein  Whitney,  Wid- 
ner,  Kemble  and  Jacob  Sharp  are  seeking  to  take  forty 
odd  miles  of  our  road,  clearly  shows  the  manipulator's 
hand  ;  and  I  have  no  doubt  that  Mr.  Wickes  said  "no," 
and  I  have  no  doubt  why  he  said  "no."  He  did  not  care 
about  the  order  of  the  Mayor  or  the  Commissioner  of  Public 
Works,  or  the  head  of  the  Fire  Department ;  but  the  legacy 
that  William  C.  Whitney  has  left  for  his  successors  in  that  great 
office  of  Corporation  Counsel,  is  to  do  what  he  personally,  for  his 
own  private  uses,  requires  to  be  done. 

Now  I  have  here  an  Australian  paper — a  Melbourne  paper. 
It  is  dated  June  20,  1885.  It  shows  that  cable  roads  are  in  such 
favor  there  that  the  corporate  authorities  indorse  their  bonds  and 
promote  their  construction.    (Extract  read). 

Now,  we  have  a  cable  road  in  successful  operation  in  Phila- 
delphia. 

The  Chairman — Is  the  road  in  Philadelphia  constructed  on 
the  same  general  plan  as  that  in  Chicago  ? 

Mr.  Shaw — Yes,  sir.  They  have  changed  their  grip  and  have 
now  got  ours,  and  it  is  working  very  finely.  In  Kansas  City  they 
have  built  a  cable  road.  They  are  operating  it  very  successfully. 
They  have  attempted  to  evade  the  Hallidie  patents,  and  they  got 
into  trouble.  They  are,  however,  running  their  cars  very  suc- 
cessfully, and  doing  a  tremendous  business.  You  have  seen  the 
cable  road  on  the  Bridge ;  and  they  are  building  one  on  Tenth 
avenue. 

The  Chairman — Is  it  claimed  that  it  is  built  on  the  same  plan 
as  the  Chicago  system  ? 

Mr.  Shaw— It  is  built  on  our  plan.  The  grip  is  ours.  They 
have  infringed  it,  and  we  have  sued  them. 


109 


The  Chairman — Are  they  building  it  on  the  same  plan  as 
relates  to  the  slot  % 

Mr.  Shaw — Yes,  sir. 

The  Chairman" — They  find  the  slot  in  Philadelphia  to  widen 
from  one  to  one  and  three-quarter  inches. 

Mr.  Shaw — They  are  using  what  is  called  Bonzano's  tube.  In  . 
order  to  make  cheaper  work  and  shallower  excavations,  they 
adopted  in  Philadelphia  this  Bonzano  tube,  and  that  is,  of  course, 
not  so  substantial,  and  does  compress,  and  that  has  been  their  dif- 
ficulty in  Philadelphia. 

The  Chairman — Is  this  road  in  Chicago  built  of  cast-iron 
yokes  and  masonry  ? 

Mr.  Shaw — Yes,  sir. 

The  Chairman — The  question  arose  in  my  mind  un£er  this 
system  if  the  slots  should  be  liable  to  open  so  wide,  it  would  be 
very  defective.  It  seeems  to  me  some  mechanical  arrangement 
ought  to  overcome  this  difficulty. 

Mr.  Shaav — Any  attempt  thus  Par  made  with  tubes  has  been 
a  failure.    We  are  to  use  trenches  and  they  give  a  firm  slot. 

The  Chairman — The  affidavit  of  some  party  states  that  he 
found  on  certain  sections  of  the  road  in  Chicago,  which  he  men- 
tions specifically,  that  the  width  of  the  slot  is  so  wide  that  it  would 
undoubtedly  be  very  dangerous. 

Mr.  Shaw — That  is  Crowley's  evidence.  It  might  occur  that 
the  cable  got  out  of  gear.  Horse  cars  often  jump  the  track 
and  delays  follow.  I  don't  suppose  that  indicts  the  horse-rail- 
road system.  The  situation  of  Chicago  is  very  peculiar.  It  is 
built  on  a  swamp,  and  the  masonry  work  may  not  have  been 
cemented  or  piled  sufficiently. 

Now,  I  have  here  an  article  from  a  Philadelphia  paper,  which 
I  will  read. 

(Extract  read). 


110 


Thus  you  see  the  cable  road  is  in  very  successful  operation  in 
Philadelphia,  though  they  are  using  iron  tubes  there  instead  of 
trenches.  We  do  not,  as  you  know,  take  much  stock  in  these 
iron  tubes  in  place  of  trenches.  I  have  also  here  a  description  in 
the  St  Louis  Republican  of  a  cable  road  in  St.  Louis  and  in 
Kansas  City.  I  won't  read  it,  but  it  shows  the  high  appreciation 
held  for  cable  roads.  They  are  building  one  in  Cincinnati.  I 
have  sent  some  copies  of  the  Commercial  Gazette,  containing  an 
account  of  it,  to  the  Commissioners. 

I  have  also  here  a  newspaper  from  Dunedin,  the  principal 
city  of  ]STew  Zealand,  from  which  I  read. 

(Extract  read). 

Thus  you  see  the  New  Zealander,  Macaulay's  New  Zealander, 
has  put  cable  roads  in  successful  operation  in  that  quarter  of  the 
globe.  They  seem  to  be  going  everywhere,  circling  the  globe, 
and  greeting,  if  I  may  borrow  inspiration  from  the  famous 
sentence  of  Daniel  Webster,  a  the  rising  sun  at  every  hour  of 
his  course." 

Now,  after  eleven  years  of  successful  operation  in  San  Fran- 
cisco, is  it  not  preposterous  to  say  that  the  cable  road  is  an 
experiment  ?  The  cable  road  is  now  being  introduced,  as  Mr. 
Hallidie  tells  us,  in  Bristol,  in  Manchester,  in  Glasgow  and  in 
Edinburgh.  It  was  said  when  the  cable  road  was  built  in  San 
Francisco,  it  is  a  very  good  road  to  go  up  hill,  but  it  would  never 
do  on  a  level.  That  was  the  objection  urged  against  the  cable 
road — that  it  could  be  operated  successfully  only  for  going 
up  hills  and  hilly  streets.  The  San  Francisco  horse-railroad  com- 
panies fought  the  cable  system  for  years  and  years  on  that  ground 
alone ;  and  they  argued  that  it  could  not  be  operated  on  an  ap- 
proximately level  street,  with  just  as  much  tenacity  as  does  my 
friend  on  the  right ;  that  it  is  impracticable  on  narrow  streets  ; 
that  it  would  only  do  for  the  hilly  and  not  for  the  level  part 
of  the  city.  At  last  they  got  it  on  the  level  portion,  and  it 
worked  better  on  the  level  portion  than  on  the  hills.  Then  it 
was  taken  to  Chicago  to  be  placed  on  its  level  reaches  of  streets, 
and  the  objection  followed  it  to  Chicago ;  and  Mr.  Holmes  tells 
us  that  the  greatest  difficulty  that  his  corporation  experienced  was 


Ill 


because  it  was  asserted  that  a  cable  road  on  a  level  plain  was  an 
experiment.  Well,  the  experiment  has  proved  an  immense 
success. 

We  now  meet  the  objection  here  in  New  York,  that  it  is  a 
very  good  thing  for  wide  level  streets,  such  as  are  characteristic 
of  Chicago,  but  not  for  the  narrower  ones  of  New  York.  Look 
for  a  moment  at  this  objection.  Does  it  occupy  any  more  space 
than  the  horse-car  system  ?  Are  not  cable  tracks  as  inflexible  and 
rigid  as  horse-car  tracks  ?  Is  there  more,  as  in  case  of  horse-cars, 
than  fourteen  feet  seven  inches  when  two  cars  are  standing  on  the 
track  side  by  side,  from  the  outer  projection  of  one  car  to  the 
outer  projection  of  the  other  ?  No  !  Is  a  cable-car  as  easily  man- 
aged as  a  horse-car  ?  All  the  proofs  before  you  worth  considering 
declare  it  far  easier.  The  wonderful  mechanism  of  that  grip  is 
like  your  hand.  It  can  grasp  and  relax  and  is  as  sensitive  to  the 
pressure  of  the  hand  as  quicksilver.  So  that  its  movement  can 
be  controlled  more  absolutely  than  the  movement  of  the  horse-cars. 
The  rest  of  the  testimony,  Mr.  Cox,  Mr.  Holmes,  Mr.  Hallidie, 
Mr.  Shinn,  Mr.  Endres  and  General  Yiele,  show  that  wherever 
a  horse-car  can  go  cable-cars  can  go.  The  narrowness  of  the 
street  is  not  a  special  objection  to  a  cable  road.  The  objection 
of  the  narrowness  of  the  street  would  be  to  any  road  whatever. 

The  Chairman — That  is  what  they  have  urged. 

Mr.  Shaw — Then  why  have  they  filed  for  horse-roads  on 
our  routes  in  narrow  streets?  They  have  said  that  the  use  of 
cable-cars  is  attended  with  a  great  deal  of  danger.  Mr.  Holmes' 
testimony  is  clear,  and  he  says  there  are  fewer  accidents  on  the 
ten  miles  of  his  cable-road  in  Chicago,  which  carries 
three-quarters  of  his  passengers,  than  on  the  other  forty 
miles  of  his  road  where  horses  are  used.  Cable-cars  can  be 
glided  through  crowds  because  they  are  so  easily  managed.  One 
of  the  best  illustrations  was  given  to  me  by  a  gentleman  whom  I 
asked  to  look  at  the  road  in  Chicago.  It  was  at  the  time  of  the 
Democratic  Convention  that  nominated  President  Cleveland.  The 
crowd  extended  over  the  track  near  the  Palmer  House.  I  asked 
him,  on  his  return,  u  What  did  you  find  out  about  the  cable-road  ? " 


112 


"  Wlvy"  said  he,  u  the  car  ivill  go  a  mile  in  five  hours ;  yes,  it 
toill  go  a  mile  in  ten  hours  if  necessary"  I  asked  him  what  he 
meant.  Then  he  explained  that  50,000  people,  densely  packed,, 
stood  over  and  around  the  track  of  that  road,  and  by  the  opera- 
tion of  that  grip,  that  wonderful  piece  of  mechanism,  the 
car  moved  so  slowly  on  that  the  people  fell  aside  unharmed.  No 
horse-car  could  have  gone  through  that  great  crowd.  Why  the 
cable-car  was  one  of  the  crowd,  it  moved,  as  the  Chairman,  Mr. 
Livermore,  of  the  Mayor's  Cable  Commission  said,  in  sympathy 
with  it.  We  can  go  into  any  street  where  a  horse-car  can  go,  and 
we  wil]  occupy  less  space  than  a  horse-car,  for  horses  do  no  work 
to  carry  passengers  except  to  drag  the  car.  But  the  grip-car  not 
only  furnishes  the  locomotion,  but  it  accommodates  passengers ;, 
and  the  grip-car  and  the  car  attached  are  hardly  longer  than  a 
horse-car  with  its  horses.  Now,  supposing  the  cable  road  had  been 
built  upon  Broadway,  where  a  majority  of  the  property-owners 
consented  that  it  might  go,  and  it  were  operating  there  to-day, 
they  would  be  carrying  two  and  three  cars  in  a  train  and  doing 
the  business  with  perfect  and  decorous  safety.  The  horse-cars  at 
present  can  hardly  stop  for  a  passenger  because  there  is  not  time 
enough  to  let  passengers  get  on  and  off,  because  they  cannot  oper- 
ate a  brake  on  a  horse-car  to  arrest  even  the  speed  or  will  of 
horses ;  but  on  the  cable-cars  they  have  in  their  grip-car  a  power- 
ful brake  which  they  can  handle  with  the  utmost  expedition,  and 
with  the  greatest  force  when  they  want  to,  and  obedient  steam 
has  no  will  of  its  own  like  a  horse,  but  instantly  responds  to  the 
touch  of  the  engineer. 

Now,  Peter  Cooper  argued  in  favor  of  the  cable  roads  before 
the  Mayor's  Elevated  Commission.  You  will  find  a  note  of  it  in 
the  report  of  their  proceedings.  It  was  fairly  a  craze  of  the  great 
philanthropist's  life  to  have  cable  railways  in  Ken  of  horse  rail- 
ways ;  and  that  act  of  1866  alluded  to  by  Mr.  Cozans,  is  known 
as  Peter  Cooper's  act,  and  it  was  to  enable  the  construction  of 
cable  railways  here. 

I  hold  here  in  my  hand  the  report  of  the  convention  of  the 
American  Street  Railway  Association.  It  was  held  in  Chicago  in 
1884,  and  the  subject  presented  to  the  convention  was  the  Report 
of  the  Committee  on  Transportation,  signed  by  A.  S.  Johnson  and 


113 


William  Richardson.  Mr.  Richardson  is  the  foremost  horse-rail- 
road man  in  this  country  and  perhaps  in  the  world. 

(Extract  read.) 

The  convention  adopted  that  report  that  the  cable  system 
ought  to  be  substituted  for  the  horse  system.  The  horse-railroad 
men  say  so  themselves.  Mr.  Kichardson  himself,  no  longer  than 
last  year,  read  a  paper  before  the  Constitutional  Club  in  Brooklyn, 
in  which  he  declares  that  the  very  thing  of  all  others  for  street 
railway  transit  was  the  cable  system,  and  into  that  paper  he 
incorporates  with  pride  the  report  from  which  I  have  just  read. 
He  is  probably  the  greatest  living  authority  on  street  railroads 
after  Mr.  Holmes — probably  greater  than  Mr.  Holmes,  for  he  has 
built  railroads  in  this  city  and  Brooklyn  under  a  great  variety 
of  conditions  as  to  topography  and  varying  width  of  streets.  This 
variety  of  conditions  is  not  so  great  in  Chicago.  But  there  I  give 
you  his  indorsement  of  the  system. 

Now,  what  is  Mr.  Henry  Hart,  of  the  Third  Avenue  Rail- 
road Company,  the  most  important  surface  horse-road  in  this 
city,  doing  with  five  miles  of  cable  road  as  an  experiment? 
Is  it  not  perfectly  preposterous,  the  statement  that  Mr. 
Henry  Hart,  with  his  notorious  propensity  to  never  risk  anything, 
to  say  that  he  is  spending  a  million  dollars  as  an  experiment  % 
He  has  experimented  in  this  way.  He  knows  cable  roads  are  a 
success.  He  is  the  last  man  that  would  experiment.  The  fact 
that  he  has  put  the  money  of  his  corporation  into  this  system 
sufficiently  indicates  that.  They  tell  me,  he  counts  the  nickels 
collected  during  the  day  every  night,  and  spends  half  the  night 
doing  it  before  he  would  spare  one  farthing  to  repair  an  old  tie 
or  an  old  rail.  For  long  after  steel  rails  had  become  used  he 
kept  his  old  iron  rails  on  Third  avenue  ;  and  to-day  it  is  largely 
iron,  and  is  the  roughest  and  the  most  indecent,  and  the  worst 
appointed  road  there  is  in  the  city.  His  parsimony  or  for 
euphemism,  I  say  his  economy,  proves  that  cable  roads  are  not  an 
experiment.  Would  such  a  man  as  that  throw  broadcast  a  million 
dollars  to  build  live  miles  of  road  in  a  sparsely  settled  portion  of 
the  city,  as  an  experiment  %    It  is  preposterous. 

There  is  Henry  Hart.  I  don't  love  him  much,  and  I  don't 
8 


114 


know  who  does,  unless  it  be  the  great  adversary  of  mankind.  The 
Jew  of  the  Rialto.  His  counsel  comes  here  and  acknowledges  his 
intrinsic  meanness.  Old  Shylock  was  a  prince  of  liberality  com- 
pared with  him.  I  incur  no  risk  in  denouncing  him  as  thoroughly 
and  absolutely  abominable.  Shylock  could  hate  and  was  ready 
to  pay  for  his  hatred ;  but  Henry  Hart  loves  money  with  such 
miser-greed,  that  with  his  millions  at  command  he  won't  resent, 
if  it  costs  him  a  penny,  any  expression,  however  much  it  could 
or  might  offend  any  other  mortal  being's  pride,  fanaticism,  religion, 
superstition  or  fear.  This  is  the  man  that  is  spending  one  million 
dollars  to  build  a  cable  road  in  the  terra  incognita  portions  of 
our  island  S  Do  you  think,  now,  that  cable  roads  are  an  unfeasi- 
ble and  experimental  thing  % 

Now  Mr.  Bergh  has  said  that  it  would  be  an  inestimable 
boon  to  this  city  if  this  cable  system  could  be  adopted.  He  inti- 
mates but  one  objection.  He  gives  us  some  startling  figures 
as  to  its  need.  His  statement  will  be  foimd,  if  the  Commis- 
sioners please,  in  the  affidavit  of  Professor  Cox.  He  suggests 
only  one  doubt,  and  he  says  he  is  afraid  that  the  slot  might  inter- 
fere with  hoofs  of  horses.  But  Mr.  Hallidie  told  us  there  was 
nothing  of  that  sort  known  in  San  Francisco.  Mr.  Holmes 
says  the  objection  is  fanciful,  and  that  is  all  we  have  to  say  about 
it ;  and  there  is  no  proof  in  any  quarter,  except  such  observations 
as  Sterling  may  have  put  into  the  mouths  of  witnesses  in  the 
affidavits  obtained  by  him. 

Now,  to  say  that  such  a  system  is  an  experiment  is  preposter- 
ous. It  is  in  Australia  ;  it  is  in  England  ;  it  is  in  New  Zealand  ; 
it  is  in  all  the  principal  cities  of  our  continent.  The  stars  that 
gem  the  Dipper  and  sentinel  the  North  Pole,  and  the  stars  that 
gem  the  Southern  Cross  and  sentinel  the  South  Pole  have,  dur- 
ing the  last  decade,  looked  down  upon  cable  roads  in  successful 
operation,  on  both  sides  of  the  equator.  And  such  a  system  is 
called  an  experiment ! 

Well,  if  it  be  an  experiment,  all  the  progress  in  the  arts  is 
experiment ;  all  the  inventions  by  which  humanity  has  been 
ameliorated  or  glorified  are  experiments,  and  will  remain  experi- 
ments— 

"  Until  the  sun  grows  cold, 
And  the  stars  grow  old, 

And  the  leaves  of  the  judgment-book  unfold." 


115 


Sterling  says  that  he  staggered  and  was  violently  thrown  on 
the  Chicago  Cable  Road  !  He  absolutely  lies,  and  this  Commis- 
sion knows  he  lies.  All  the  world  in  onr  city  that  have  watched 
the  operation  of  the  Brooklyn  Bridge  Cable  Road,  which  is  but 
a  cable  road,  knows  he  lies.  And  when  Macaulay's  New  Zealander, 
fresh  from  Dunedin,  its  capital  city,  takes  his  lonely  stand  on 
that  bridge  to  sketch  the  ruins  of  the  Statue  of  Liberty  Enlighten- 
ing the  World,  now  being  erected  in  our  harbor,  he  will  say  he 
lies. 

But  objectors  say  it  will  interfere  with  the  sewers.  I  am  not 
good  at  the  blackboard,  so  often  used  here.  Its  chalk  and  its  black 
surface,  so  inviting  to  all  who  have  addressed  you,  furnish  me 
with  no  matter  for  argument.  I  shall  trust  to  verbal  diagram 
rather  than  one  drawn  with  chalk  on  that  board.  Do  you  know 
that  the  cable,  which  is  the  propelling  power  of  cable  roads,  lies 
close  under  the  pavement,  very  near  to  the  surface  of  the  street  ? 
The  grip  attaches  to  that  cable  and  lies  as  near  the  surface  as  the 
rails  on  the  road-bed  of  a  surface  horse  road  do.  Just  right  under 
the  pavement,  Now,  that  cable  is  operated  on  sheaves  or  pulleys ; 
and  those  pulleys,  in  order  to  give  the  cable  its  proper  slackness, 
are  placed  at  a  distance  of  thirty-five  or  forty  feet  apart.  They 
do  not  want  a  perfect  cable  tension,  so  it  is  not  necessary  the  trench 
should  be  continuous.  You  use  so  much  trench  as  is  necessary, 
and  if  you  encounter  an  obstacle  near  the  surface,  why  all  that 
you  have  to  do  is  to  let  your  cable  pass  over  it.  So,  if  a  sewer 
be  fifteen  feet  across,  all  that  you  have  got  to  do  is  to  have  your 
trench  terminate  at  each  side  of  the  sewer,  and  let  your  cable  go 
over.  There  is  no  sewer  or  pipe  or  drain  that  is  of  a  greater 
diameter  than  ten  or  twelve  feet,  or  nearer  the  surface  than  three 
feet,  and  these  sheaves  are  placed  at  a  distance  of  thirty-five  feet 
apart.  That  meets  the  question  that  Mr.  Wheeler  presented 
without  the  necessity  of  any  involved  mechanical  contrivance. 

Now,  on  the  subject  of  health,  I  will  simply  make  this  obser- 
vation :  all  the  evidence  in  the  case  against  us  would  apply  to  the 
excavation  of  the  soil  anywhere  on  earth.  The  very  plowing 
and  subsoiling  and  tilling  of  our  farmers  would  produce  the 
same  consequences  that  are  alleged  to  follow  from  the  upturning 
of  this  soil.    So  that  when  we  say  "  they  tickle  mother  earth  and 


116 


she  smiles  with  her  harvest,"  according  to  the  testimony  of  these 
doctors  before  us,  she  produces  the  noisome  air  of  pestilence ! 
Now,  the  whole  argument  on  that  question  would  apply  to  dig- 
ging a  hole  anywhere.  I  do  not  think  much  of  that  testi- 
mony or  the  argument.  The  testimony  was  gotten  up  by  the 
power  of  Jay  Gould  and  the  Western  Union  people  to  influence 
the  Legislature  to  repeal  the  law  requiring  them  to  put  their  tele- 
graph wires  under  ground,  and  having  been  gotten  up  and  ready 
at  hand  it  was  brought  here  and  mutatis  mutandis,  was  made 
applicable  to  this  case.  It  was  already  prepared  and  fitted  to 
this  situation  when  Mr.  Wiekes'  masters  told  him  that  he  must 
oppose  this  road. 

I  won't  hint  that  Jay  Gould  and  William  C.  Whitney  are 
working  the  same  groove  in  this  matter.  Both  are  notoriously 
inveterate  speculators.  Does  this  explain  how  the  testimony  in 
one  case  and  the  other  came  from  the  office  of  the  Counsel  to  the 
Corporation  ?  I  hope  not.  But  men  of  both  meaner  and  larger 
perceptions  than  mine  may  think  otherwise.  Let  that  pass.  I 
have  no  warrant  to  make  an  insinuation  on  the  sub  ject,  and  I  do 
not. 

Now,  who  has  assailed  this  cable  system  ?  Take  the  City  of 
New  York,  with  all  its  resources,  all  its  railroad  combination,  and 
they  have  not  been  able  to  produce  a  respectable  engineer  to 
belittle  or  disparage  or  criticise  the  cable  railway  system.  The 
only  engineer  they  have  produced  with  all  their  resources — the 
only  man  they  could  induce  to  enter  their  service  was  this  man 
Crowley.  In  this  city,  full  of  capable  engineers  with  full 
means  of  examination,  whom  have  they  brought  here  but  this 
boarding-house  bilker  Crowley  and  McKay,  detailed  from  the 
office  of  Public  Works.  Mr.  Bostwick  and  Mr.  Webster  are 
not  mechanical  engineers,  they  only  deal  with  the  disturbance  of 
the  sewers,  and  I  have  shown  that  we  never  shall  have  occasion 
to  disturb  those  sewers.  So  that  all  the  expert  evidence  in  this 
case  against  the  cable,  or  criticising  it,  declaring  it  is  an  experi- 
ment or  otherwise,  is  the  testimony  of  that  man  Crowley  and 
this  man  McKay,  while,  on  the  other  hand,  we  have  produced 
Hallidie,  Holmes,  Yiele,  Shinn,  Boiler,  Endres  and  North. 
What  an  array  of  engineering  talent,  probably  the  finest  in  the 
world,  versus  Crowley  impleaded  with  McKay  ! 


117 


Who  wants  these  cables  ?  Mr.  Earle's  affidavits  disclose  to 
you  that  the  people  want  them.  At  the  time  he  made  his  affida- 
vit there  were  60,000  signers ;  I  have  a  petition  here,  which 
Mr.  Earle  refers  to  in  his  affidavit,  signed  by  70,000,  signed 
by  their  own  hands,  asking  for  the  cable  system  as  it  is  laid  out 
upon  our  maps,  and  as  we  are  asking  for  it  here.  I  admit  we 
paid  five  cents  a  name  to  the  canvassers  to  get  it.  Can  you 
expect  your  business  to  be  done  without  paying  for  it  ?  It  was  a 
method  we  took  for  paying  our  canvassers  and  securing  good 
work.  They  were  selected  men  and  women,  whose  oath  would 
be  taken  in  any  court  of  justice  any  day,  anywhere  ;  men  and 
women  whom  you  know,  or  might  not  feel  dishonored  to  know ; 
men  like  Charles  Gildersleeve ;  men  taken  from  medical  colleges, 
and  students ;  men  recommended  to  us  by  good  people  who 
knew  them.  Ladies  from  the  formal  College,  and  other  women 
good  and  true.  They  circulated  this  petition ;  they  went  into 
factories,  and  they  obtained  signatures,  and  they  are  in  the  hand- 
writing of  the  persons  who  made  them.  The  canvassers  returned 
their  work,  and  swore  that  they  saw  the  signature  made  by  the 
party  who  professed  to  own  the  name.  In  this  appeal  to  the 
Commissioners,  we  hear  the  tender  voice  of  woman.  They  come 
here  and  ask  you  to  give  them  this  system,  as  a  transfer  system,  as 
a  means  of  economy,  as  an  addition  to  their  income  and  an 
increment  of  wages  to  them.  I  regret  that  I  cannot  speak  of  all 
the  ladies  that  came  to  speak  for  their  sex,  but  I,  in  common  with 
all  who  admire  Hypatia,  must  lay,  as  you  must  lay,  the  homage 
of  your  respect  at  the  feet  of  Mrs.  Dr.  Lozier.  Now,  against  all 
that,  what  do  we  have  ?  We  have  for  it  Mrs.  Dr.  Lozier,  Miss 
Janness  and  Mrs.  Cobb  versus  Mrs.  Twitchell.  That  is  the  situa- 
tion ;  and  the  contrast  between  our  list  of  engineers  and  Crowley ; 
and  the  contrast  between  our  lady  petitioners  for  this  system  and 
Mrs.  Twitchell  represents  the  merits  of  our  case  and  the  demerits 
of  our  adversaries.  I  wish  to  say  farther  on  this  subject,  that 
the  public  invited  this  system  and  desired  to  have  it.  The 
original  rapid  transit  petition  to  the  Mayor  was  signed  by  116  of 
our  leading  citizens.  And  the  first  on  the  list  was  that  merchant 
prince,  H.  B.  Claflin.  There  were  some  three  hundred  million 
dollars  represented  among  those  names.    And  of  those  people 


118 


who  petitioned  for  this  cable  system  and  took  their  oath  that 
they  desired  it,  more  than  60  of  them,  including  Mr.  Claflin, 
have  overlooked  the  work  of  the  Mayor's  Commission,  and  have 
approved  of  it,  and  are  now  asking  that  it  should  be  approved. 

Now,  the  last  topic  that  I  care  to  discuss  is  this :  We  have 
given  you  a  system  ;  we  ask  you  to  return  it  to  us  with  your 
approval  complete  and  unmangled.  I  speak  with  all  the  fervor 
of  him  who  wrote : 

"  Woodman  spare  that  tree, 
Touch  not  a  single  bough.  " 

We  have  given  you  a  perfect  system,  as  we  think,  as  near  as 
it  can  be.  Do  not  return  to  us  a  partial  route,  nor  with  any 
part  broken  off  or  any  limb  lopped  off.  Let  us  have  this  most 
perfect  system  in  its  completeness  and  entirety.  A  suggestion 
has  been  made  that  we  ought  not  to  go  below  the  Brooklyn 
Bridge.  Why  should  you  refuse  us  a  complete  system  to  the 
Battery?  Don't  people  want  to  be  delivered  in  Wall  street? 
There  is  some  narrowness,  I  admit,  in  William  street,  but  William 
street  is  a  dead  street ;  the  owls  and  the  bats  are  there  now.  It  is 
used  for  the  storage  of  gross  things  ;  there  is  an  air  of  decay  about 
it.  It  is  Rotten  Row  of  the  city.  Such  a  Rotten  Row  is  found  in 
all  cities,  for  every  city  has  its  Rotten  Row,  and  William  street 
is  our  Rotten  Row.  It  has  had  its  day  of  glory,  but  it  is  gone. 
There  is  room  for  this  road  through  that  street.  The  narrowest 
point  is  nineteen  feet  eight  inches ;  its  average  is  about  twenty- 
two  feet,  and  if  you  put  two  tracks  there,  and  the  cars  should  be 
on  them  side  by  side,  the  distance  from  the  outside  of  one 
car  to  the  outside  of  the  other  would  be  fourteen  feet  seven 
inches ;  but  the  coincidence  of  the  meeting  of  two  cars  stopping 
at  the  same  time  is  not  likely  to  happen  very  often.  The  im- 
pediment to  the  traffic  they  have  on  the  street  now  would  be  that 
of  one  track  and  one  car  at  a  time.  Then  if  you  do  that  and 
extend  our  facilities  into  Wall  street,  through  Broad  down  to  the 
Battery,  you  will  give  us  a  route  from  the  Harlem  river  to 
the  Battery  ;  and  in  that  case  William  street  will  immediately 
assume  the  character  of  an  office  street  like  Lombard  street  in 
London,  which  is  no  wider,  and  which  is  one  of  the  most  com- 


119 


pact  and  beautifully  built  streets  in  the  City  of  London.  But  it 
will  be  used  for  an  office  street,  and  I  have  no  doubt  the  appre- 
ciation of  property  will  be  enormous.  I  have  no  doubt  it  will 
be  the  making  and  the  saving  of  the  street. 

The  same  arguments  may  apply  to  Cortlandt  street  and  Liberty 
street.  They  lie  between  two  rivers.  Brooklyn,  with  a  popu- 
lation of  800,000  and  Jersey  City  200,000,  with  Newark's 
250,000  population  hard  by,  are  incessantly  pouring  across  the 
lower  part  of  the  city.  They  go  and  pass,  and  pass  and  go,  in 
swift  and  multitudinous  processions  across  the  lower  end  of  our 
island,  from  ferry  to  ferry,  like  a  weaver's  shuttle.  They  need 
these  facilities. 

Now,  I  am  saving  a  great  deal  of  argument  by  putting  to  you 
the  issues  in  this  shape.  If  you  do  not  give  us  this  complete  sys- 
tem, some  one  else  will  have  the  portion  of  it  you  lop  off.  For 
it  is  as  certain  as  night  follows  the  day,  if  you  deprive  us  of 
these  down-town  routes,  you  simply  hand  over  that  part  of  our 
system  to  another — perhaps  to  several  others.  Those  routes  have 
already  been  filed  on  by  horse-railroad  people ;  the  notices  are 
now  being  published  in  the  papers.  I  have  got  to  get  out  another 
injunction  to  stop  them  from  applying  for  consent  from  the  local 
authorities.  It  is  a  fore-doomed,  fore-ordained,  fore-fixed  thing  that 
if  we  do  not  have  it  somebody  else,  several  bodies,  will.  By  tak- 
ing it  from  us  and  giving  it  to  somebody  else,  people  will  have 
to  pay  extra  fares ;  if  it  is  left  to  our  system  there  is  no  extra 
fare.  Why  will  you  make  people  pay  additional  fares  by  taking 
this  out  of  our  system  and  allowing  independent  roads  to  fall 
into  other  hands  ?  I  think  that  sums  up  all  that  is  to  be  said 
on  that  subject.  Whatever  may  have  been  the  inclination  of 
the  Commissioners  heretofore  on  the  subject  of  these  down- 
town routes,  when  they  were  filed  on  by  Ed.  Karney  and  Dan. 
Conover's  corporations  with  Col.  Wagstaff  following  behind,  to 
defeat  our  application  here  and  get  those  routes  and  cut  them 
off  from  our  Main  Route  No.  1.  I  see  a  design  in  all  this 
work.  They  have  made  opposition  to  this  route  in  order  that 
they  might  get  other  routes  themselves.  But  they  have  unfolded 
their  hand  too  soon. 

And  whatever  may  have  been  the  opiuion  of  the  Commis- 


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sioners  on  these  down-town  routes  before,  it  is  so  clear  and 
patent  that  without  a  positive  injury  to  the  people,  without 
compelling  them  to  pay  an  increased  fare,  with  poorer  facilities, 
you  cannot  take  them  from  our  system.  I  say  we  give  you  in 
Route  No.  1,  a  perfect  route  from  the  Harlem  river  to  the  Bat- 
tery. Do  not  return  to  us  a  mangled  form ;  do  not  hand  over 
to  us  a  torso  broken  in  any  part. 

And  so  it  is  with  reference  to  all  our  cross-town 
routes.  It  has  been  said  that  we  maliciously  paralleled 
Twenty- third  street,  and  did  the  same  thing  in  Fourteenth  and 
Broome  streets.  It  is  the  case  of  the  snake's  egg  in  the  eagle's 
nest.  We  did  not  maliciously  parallel  those  routes.  We  pro- 
posed a  system  on  axial  lines  on  the  east  and  the  west  sides  of 
the  city,  with  transfer  tickets ;  and  in  order  to  give  free  rides, 
for  that  is  practically  what  it  means,  we  had  to  have  cross-town 
roads.  It  would  never  have  done  for  us  to  drop  our  passengers  at 
Twenty-third  street  and  transfer  them  to  Mr.  Sharp's  horse  cars 
to  pay  him  an  additional  fare.  We  were  bound,  in  order  to  make 
our  system  the  beneficent  thing  that  we  claimed  for  it,  that  we 
should  have  cross-town  routes  without  additional  charge.  Lop 
them  off  if  you  must,  they  are  scarcely  feeders  to  us  ;  they  won't 
put  any  revenue  into  our  pockets  ;  but  the  system  requires  for  its 
completion  that  you  should  have  facilities  of  cross-town  traffic 
from  axial  lines,  and  that  they  should  be  connected,  and  that  a 
single  fare  should  carry  a  passenger  to  his  destination  over  them. 
We  put  a  cross-town  line  in  Forty-second  street,  because  it  is  a 
good  street.  It  was  needful  for  that  street,  and  we  intend  to 
keep  it  there  if  we  can  get  the  sanction  and  approval  of  this 
Commission  to  the  scheme  in  its  entirety.  Supposing  you  take 
it  out,  what  is  the  result  ?  You  make  our  passengers,  when  they 
get  off  from  our  axial  lines  east  or  west,  pay  an  additional  fare  of 
five  cents  to  Mr.  Conover's  road.  Is  it  a  fair  imposition  to  put 
upon  those  passengers  ?  Certainly  not.  You  are  legislating  against 
the  people,  if  in  any  way,  shape  or  form,  you  require  our  passen- 
gers to  be  transferred,  to  avail  themselves  of  separate  and  inde- 
pendent horse-railroad  lines  when  you  can  give  connection  with 
our  system.  The  system  that  Gen.  Yiele  laid  out,  the  very 
beauty  and  harmony  of  the  system,  lies  in  that  transfer  facility, 


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and  to  take  it  away  from  us  and  from  the  people  is  to  make  the 
people  pay  additional  fares. 

Now,  some  criticism  has  been  made  upon  the  number  of  our 
routes.  That  I  care  not  further  to  answer.  I  may  again  and  again 
refer  to  it  before  I  finish ;  for  I  am  proud  of  it.  The  laying  out 
of  our  routes  and  that  we  are  crossing  prohibited  streets,  I  will  just 
notice  in  conclusion.  Our  system,  consisting  as  it  does  of  two 
axial  lines,  with  these  cross-town  lines,  crosses  a  longitudinal  line 
of  streets,  which  may  be  called  prohibited  streets;  for  example, 
Broadway  and  Fifth  avenue.  Our  system  presents  the  appearance 
of  two  combs,  whose  backs  respectively  are  on  the  east  side  and 
west  side  of  the  city  and  whose  teeth,  as  representing  cross:town 
lines,  approach  to,  but  cannot  cross,  these  prohibited  streets. 

Well,  there  are  my  combs,  and  there  are  their  teeth.  I  think 
the  public  will  find  it  a  matter  of  regret  that  these  teeth  cannot 
be  brought  together — there  is  a  legal  lock-jaw  that  keeps  them 
apart — for  if  they  could  be  brought  together,  why  then  the  transit 
across  the  island  from  river  to  river,  from  ferry  to  ferry,  would 
be  complete. 

If,  however,  this  lockjaw  can't  be  alleviated,  the  service  will 
be  quite  desirable  and  the  facilities  proposed  without  that  allevia- 
tion would  be  useful  and  desirable,  for  we  then  can  deliver  our 
passengers  from  our  axial  lines  to  the  central  part  of  the  city. 
We  could  carry  the  people  up  to  either  side ;  but  of  course  it 
would  be  a  more  desirable  service  if  we  could  transfer  them 
across  the  line  of  these  prohibited  streets,  but  we  should  have  to 
stipulate  that  our  passengers  would  have  to  walk  across  the  street 
and  take  the  car  on  the  other  side.  But  the  lines  would  be 
quite  completed  if  we  could  cross  Fifth  avenue  and  Broadway. 

If  the  back  of  our  combs,  in  consequence  of  legal  impediments, 
can't  project  their  teeth  across  these  prohibited  streets,  why  then 
we  must  wait  till  those  impediments  are  removed  and  then  we 
can  give  a  more  thoroughly  desirable  service.  The  public  need 
will  settle  that  with  the  Legislature  in  short  order  after  the 
people  have  walked  a  while. 

Now,  the  Mayor's  Commission  knew  very  well  that  they  could 
give  a  desirable  service  by  laying  out  the  routes  just  as  they  did, 
because  they  could  carry  their  passengers  from  either  side  up  to  the 


122 


prohibited  streets,  and  if  the  Legislature  should  enable  them  to  go 
across  the  streets,  then  it  would  be  an  extremely  desirable  service. 
But  it  is  very  desirable  in  the  form  in  which  they  have  left  it. 
Now  they  counted  upon  the  Legislature  to  complete  the  system. 
The  Legislature  has  done  so;  that  expectation  is  fulfilled. 
Within  ten  or  twelve  days  after  the  Articles  of  Association  were 
adopted,  the  Legislature  passed  an  act  which  enabled  them  to 
extend  their  roads  and  fill  up  these  gaps  and  complete  the  sys- 
tem, and  our  corporation  have  taken  the  necessary  steps  to  com- 
plete the  system  by  going  to  the  Common  Council  and  asking 
their  assent  to  their  crossing  the  roads.  We  have  filed  for  that 
extension.  I  have  laid  the  proof  of  our  application  before  you  ; 
and  it  is  a  part  of  your  testimony,  so  that  you  suffer  no  embarrass 
ment  whatever. 

The  Chairman — What  law  do  you  refer  to  ? 

Mr.  Shaw— The  Act  of  1884  ;  by  proceeding  to  confirm  this 
thing  in  its  present  shape,  because  if  the  Board  of  Aldermen 
confirm  your  proceeding  they  will  also  confirm  these  extensions, 
so  that  it  is  certain  that  we  will  have  them  or  we  will  have 
nothing  from  the  Board  of  Aldermen.  You  take  no  risk  in  doing 
it,    You  are  to  consider  the  end  in  view,  the  performance  of  this 
public  service  in  the  extremely  desirable  form  we  present  here. 
You  need  not  stand  on  ceremony  so  long  as  statutes  in  pari  materia 
enable  you  to  complete  your  work.    Do  you  not  think  it  is  a 
good  thing  to  have  these  public  services  that  we  propose  \  We 
will  take  care  of  statutes  in  pari  materia  ;   those  are  questions 
which  will  be  reached  by  the  Court.    You  are  to  deal  with  the 
physical  and  economic  aspects  of  this  matter,  irrespective  of  such 
legal  technicalities  or  objections  as  have  been  offered.    You  are 
to  tell  us  whether  or  not  it  is  a  good  thing,  all  considerations 
taken  into  account,  to  have  this  system  go  into  operation  as  a 
physical  fact.    Now  I  don't  care  whether  you  report  before  the 
Board  of  Aldermen  reports  or  after.    It  makes  no  difference. 
If  the  Board  of  Aldermen  report  in  our  favor,  they  will  report 
with  these  provisions  in  it.    If  the  Board  of  Aldermen  report 
against  us,  all  this  work  is  vain,  and  no  harm  can  come  from  it. 
I  don't  think  there  is  any  further  question  to  discuss  on  the 


123 


merits  or  on  the  law  of  this  case.  I  have  nothing  to  do  now  but 
to  express  my  thanks  to  the  Commissioners  for  their  patient  hear- 
ing, and  I  hope  that  they  will  address  themselves  to  a  speedy 
completion  of  the  work  before  them,  so  that  we  shall  understand 
what  their  judgment  is,  and  if  it  be  in  favor  of  the  petitioner, 
we  shall  want  to  make  an  early  application  to  the  Court  for  the 
confirmation  of  the  report.  I  hope  the  Commissioners  will  go 
to  Chicago  and  see  whether  Mr.  Holmes  or  Mr.  Sterling  speaks 
the  truth,  and  I  hope  they  will  put  in  their  bill  of  expenses, 
items  for  the  petitioner  to  pay  on  the  same  basis  that  all 
expenses  for  this  inquiry  have  to  be  paid. 

Chairman  Pelton — The  Commissioners  desire  to  express  to  the 
Counsel  of  both  sides  their  obligations  for  the  kindness  and 
courtesy  with  which  we  have  been  personally  treated  and  the 
general  kindness  and  respect  which  has  been  manifested  towards 
us.  As  we  have  previously  intimated,  the  Commissioners  will 
go  to  Chicago  before  deciding  the  questions  before  us. 


After  advisement,  and  after  the  Commissioners  had  visited 
Chicago  to  examine  the  merits  of  the  cable  system,  they  made 
the  following  report  on  the  petitioner's  application  : 


1 


